Burgie v. Sparks. In an action for breach of covenant, both by the old forms and in the very nature of the action, there is no general issue. The defendant must plead every matter of defense, and the evidence must correspond with the plea: Jones v. Johnson, 10 Hum., 184. The only pleas to the merits in this case were that the covenantors did not covenant as alleged, and covenants performed. All the allegations of the declaration not denied by these pleas must be taken as true: Code, sec. 2910. No objection was taken to the amount of the verdict below, and upon calculation it is found to be correct to a cent. Judgment affirmed. TURNEY, J., delivered the following dissenting opinion: On the 15th of September, 1874, the plaintiff had issued to the sheriff of Dyer county a writ to summon Smith Parks, executor of Samuel Williams, and Spl. Hill, administrator of M. R. Hill, to appear at the October term of the circuit court to answer, etc. The writ was endorsed "Executed as to Smith Parks on the 25th of September, 1874. is not to be found in my county." Spl. Hill A counterpart writ was issued to Gibson county for Hill, and endorsed as follows: "Service of this counterpart summons acknowledged as if served by the sheriff of Gibson county, and to have the same effect, and only the same effect, as if executed by the sheriff of Gibson county on me, but no further, and no rights waived. Spl. Hill." Burgie v. Sparks. On the 3d of January, 1876, an original declaration was filed, alleging that Samuel Williams and M. R. Hill had sold to plaintiff a tract of land, with covenants, etc., averring breaches, and that Parks is executor of the will of Williams, and Spl. Hill, administrator of the estate of M. R. Hill. To that declaration Parks pleaded in abatement that he was not the sole executor of Williams' will, but that B. M. Taylor was joint executor with him. Hill pleaded in abatement that Parks was not the sole executor of Williams' will, but is joint executor with Taylor, etc., that he cannot be sued with Parks alone, that the court has no jurisdiction of him, etc. The pleas were filed September 8, 1877. Both pleas were demurred to, the assignment of cause being that they "set forth no reason why the said suit should abate, nor why defendant Hill should not be jointly sued with Parks." On the 12th of January, 1878, while the pleas were being heard on demurrer, the plaintiff moved for and obtained leave to amend his writ by making B. M. Taylor a defendant, and to issue counterpart writ to Gibson county for him. Thereupon the demurrers were allowed. Several questions are made in argument, but in the view I take of the case, it is only necessary to notice those raised by the pleas in abatement. The effect of the holding of the that the amendment allowed in 1879 circuit judge is, related back to the original summons of September, 1874, and made. Taylor a party as of that date. Burgie. Sparks. Both the executors of Williams were citizens of Tennessee. Their administration was an entirety and could only be conducted by them jointly, especially in matters touching a pecuniary liability of their testator. It required both in their representative capacity to occupy the position their testator had occupied in relation to contracts and business transactions. The law recognizes the right of testators to have the united judgments of several to care for the interests of the estate he may leave at his death. So long, therefore, as two or more executors remain citizens of the State, and suit is brought to charge the estate, all must be sued. By ch. 38, sec. 1, of an act passed in 1826, carried to Code, sec. 2791, it is provided "where one of several executors removes out of the State actions may be prosecuted and judgments rendered against such as remain in the same manner as if all were sued." This statute clearly indicates that anterior to its passage no suit could be prosecuted or judgment obtained against one of several executors or administrators, and that in all cases and under all circumstances all must be jointly sued. Such was the opinion of this court at that time. The question came before the court in 1833, in the case of Bledsoe, ex'r, v. v. Huddleston, 5 Yer., 295. Gore and Bledsoe were the acting executors of Harris. Gore left on a trading excursion to New Orleans. During his absence Huddleston sued out a writ against his co-executor, Bledsoe, who pleaded the facts in abatement. The plea was demurred to. Burgie v. Sparks. Catron, C. J., delivering the opinion of this court, says: "Gore, the co-executor, was absent for some six or eight weeks to New Orleans. During his absence Bledsoe was sued alone as executor of Harris and recovered against. The acts of 1826, ch. 38,. and of 1827, ch. 84, provide in case one of the executors has removed (as in cases of attachment) the one within the jurisdiction may be sued. Removal does not mean temporary absence on a journey, but change of residence. Gore had not changed his residence, and the process of the law could have reached him." The judgment was reversed. So in this case, Taylor had not removed, nor was he temporarily absent. He was still a resident of the county in which the will of Williams was proven and in which he qualified and was acting as executor. If the statute is of any force, and actions may not be prosecuted and judgments shall not be rendered against one of several executors or administrators, it follows as a natural consequence that a suit in form against one of several in his representative capacity is no suit against the estate. To hold otherwise is to repeal the statute. The legislative declaration that in defined and specified cases one of several representatives may be sued alone, is a declaration that it shall be done in none other. Can it be said that a suit is pending in a case in which the statute provides that no action shall be prosecuted nor judgment rendered? Can a party be said to be in court under proceedings which are not only not authorized but are forbidden in law? Burgie v. Sparks. For the sake of convenience and to save expense and delay, amendments may be made in some cases. Then the general rule is that the institution of suit dates from the amendment. Flatly v. M. & C. R. R., 9 Heis., 230, was brought by Mary Flatly, the widow, for the use of herself and children, to receive damages for the killing of her husband. The statute provides that the suit shall be in the name of the personal representative and for the benefit of the widow and next of kin. If the representative refuse to sue, the widow, etc., may use his name. The suit was commenced within the bar of the statute. About six weeks after the suit was commenced, and after the twelve months had expired, the style of suit was changed from Mary Flatly, widow, etc., to E. A. Flatly, administrator, etc. defendant pleaded the statute of limitations of one year. The circuit judge charged the jury that the commencement of the action as to the plaintiff was the day the amendment was asked for and made, The making him a party. This was affirmed by this court, Judge McFarland saying: "We cannot see that there is any very strong reason why the law should. permit the action to be prosecuted in the name of the personal representative rather than in the name of the widow and children for whose benefit the recovery is to be had. But with this we have nothing to do. We simply declare the law as we find it." Now, if Mary Flatly and her children, the real and only parties in interest, were not in court by |