#### Sanford vs. McCreedy.

*Note payable to bearer*— Action *by administrator*— Pleadings, *proof and judgment as to plaintiff’s representative character*— Effect *of general denial.*

1. An administrator, wiietlier foreign or domestic, may sue *in Ms own name*upon a note of the estate payable to bearer, although it was transferred to his intestate during the life of the latter.

2. The complaint in such an action need not state the source from which plaintiff acquired title; and such allegation, if made, need not be proved.

3. The representative character in which plaintiff brought suit was not put in issue, under the old practice, by a plea of the general issue, but only by a plea in abatement or in bar, and the general denial under the code has no greater effect in this particular than the old plea of ' the general issue.

4. Since ch. 264, Laws of 1860, in actions at law tried by the court alone (as well as in suits in equity) this court will not reverse the judgment on appeal because it is not sustained by the finding, if it is sustained by the evidence.

5. Plaintiff sued as administrator, on a note payable to bearer, and there was a generaTdenial but no appearance by the defendant at the trial, and plaintiff mérely read the note in evidence and rested, and there was no finding as to his representative character. *Held,*that there was no error in rendering judgment in his favor as administrator.

APPEAL from tbe Circuit Court for *Milwaukee*County.

Tbe defendant appealed from a judgment for plaintiff. Tbe case is stated in tbe opinion.

*104
      *L. Wyman,*for tbe appellant,

contended tbat tbe plaintiff could not take judgment in bis favor individually, because tbe complaint avers tbat tbe note sued on was transferred to tbe deceased, Wbipple, in his life time, and came into plaintiff’s bands as administrator of tbe estate of said Wbipple, and tbat tbe amount due thereon was due to bim as sucb administrator. Till. & Shear. Pr., 84, and cases cited. 2. Tbat tbe judgment could not be sustained as one in favor of tbe administrator of said Wbipple: (1) Because plaintiff did not sue, and tbe judgment was not rendered in bis favor, as sucb administrator. *Merritt v.*Seaman, 6 N. Y., 168; *OgdensburghBanlc v. Van Renssel-aer,*6 Hill, 240. (2) Because plaintiff did not aver tbat be was ever appointed administrator of tbe estate of said Wbipple, at any time or place. *Thomas v. Cameron,*16 Wend., 580; *Wheeler v. Dakin,*12 How. Pr., 587; *ShaMon v. Hoy,*11 id., 11; *Beach v. King,*17 Wend., .197; *Cillet v. Fairchild,*4 Denio, 80; *White v. Joy,*18 N. Y., 83; *Chautauqua Bank v. White,*6 N. Y., 286; *Morrell v. Dickey,*1 Johnson’s Ch., 156; *Williams v. Storrs,*6 id., 353; Stephen’s PL, 288. (3) Because tbe fact of administratorship, if pleaded in tbe complaint, was put in -issue by 'the answer, and was not proven. *Prindle v. Caru-thers,*15 N. Y., 425, 429. Under tbe code, a general denial puts in issue every fact which tbe plaintiff would be bound to prove if tbat fact were specially denied. 2 Till. & Shear. Pr., 148, and cases cited. It is only when a defendant relies upon some affirmative defense tbat be is required to plead specially. This proposition is too obvious and too well settled to justify tbe citation of authorities.

*Finches, Lynde & Miller,*for tbe respondent,

to tbe point tbat plaintiff was only required to make out a *prima facie*case, and might disregard immaterial allegations, cited 1 Hand (N. Y), 124; 2 id., 83; 33 N. Y, 581. To tbe point tbat tbe production by plaintiff, at tbe trial, of tbe note, which was payable to bearer, was sufficient to entitle bim to a verdict, they cited, *Brodies v. Floyd,*2 McCord, 364; *Bright v. Currie,*5 Sandf., 438; *105
      *Robinson v.*Crandall, 9 Wend., 425. They also argued tbat tbe fact of plaintiff being administrator of Whipple’s estate was not put in issue: (1) Because it was not a *material*allegation, and a general denial does not traverse immaterial allegations of tbe complaint. (2) Because at common law tbe plea of tbe general issue did not put in issue tbe appointment of an administrator, but tbat could be done only by a plea in abatement, or a special plea in bar *(.Noonan v.*Bradley, 9 Wallace, 394); and tbe general denial under tbe code does not enlarge tbe scope or effect of tbe general issue. See 1 Monell’s Pr., 557, for a full discussion of tbe question.

LyoN, J.

Tbe action is upon a promissory note payable to Webster and Kimball *or bearer.*In tbe entitlingnof tbe summons and complaint, and also in tbe complaint, tbe plaintiff is described as tbe administrator of tbe estate of Jeremiab Whipple, deceased. Tbe complaint is otherwise in tbe usual form of complaints in actions upon promissory notes brought by tbe owners and holders thereof against tbe maters, except tbat it alleges tbat tbe note in suit “ was, before its maturity, and for a valuable consideration, duly transferred and delivered to tbe said Jeremiab Whipple, and tbe same came into tbe possession of said plaintiff as administrator of tbe estate of Jeremiab Whip ■ pie', deceased, and this plaintiff is now tbe lawful owner and bolder thereof ; tbat tbe same has not been paid, or any part thereof, but there is now justly due and owing to said plaintiff, as administrator as aforesaid, on tbe said note, tbe sum of two hundred dollars,” etc.

Tbe answer admits tbe making of tbe note as stated in tbe complaint, but denies each and every other allegation therein contained. It also sets up as another defense to tbe note, want of consideration, and notice to Whipple of such defense.

At tbe trial of tbe action tbe defendant did not appear. 'The plaintiff read tbe note described in tbe complaint in evidence, and rested bis case. Tbe circuit court found as fact *106therein, that the defendant was indebted to the plaintiff upon such note to the amount due thereon by its terms, and gave the plaintiff judgment therefor. The judgment also describes the plaintiff as administrator of the estate of Whipple. * The defendant appeals from this judgment to this comí;.

We find no error in this judgment. If the action is by the plaintiff in his individual capacity, and the judgment is in his favor as such, and not as administrator, as the plaintiff claims, the evidence is sufficient to support the judgment. For it seems to be well settled that an administrator, whether foreign or domestic, may sue in his own name upon a note payable to bearer, although such note was transferred to his intestate in the lifetime of the latter. *Brooks vs.*Floyd, 2 McCord, 364; *Robinson vs. Crandall,*9 Wend., 425; *Patchen vs.*Wilson, 4 Hill, 57; *Bright vs.*Currie, 5 Sandf., 433—opinions by Bosworth and Duer, JJ., 437 and 438. In such case it was entirely unnecessary that the plaintiff should state in his complaint the source from whence he derived title to the note ; and having stated it, it was not incumbent upon him to prove it. The mere production of the note on the trial was sufficient, *prima*facie, to entitle him to judgment.

If, on the other hand, the action is by the plaintiff in his capacity as an administrator, then we are of the opinion that the general denial in the answer does not put in issue the allegation in the complaint that he was such administrator, and hence, that the plaintiff was not required to prove the fact. Some of the authorities hold that a denial of the representative character of the plaintiff is matter in abatement, and others that it is matter in bar of the action (5 Robinson’s Pr., 59, and cases cited); but the cases all seem to agree that such representative character is not put in issue by a plea of the general issue, but only by plea in abatement, or special plea in bar. *Noonan vs.*Bradley, *1079 Wallace, 394. I do not understand that the general denial ■under the code is broader in this respect than was the plea of the general issue under the old system of common law pleadings. That the effect of these two forms of pleadings is substantially the same, or at least that the general denial is not more extensive in its operation than the general issue, is often stated in works of authority; and we have not been referred to any adjudged case, neither have we seen one, which holds that in an action by an executor or administrator, the representative character of the plaintiff may be attacked under the general denial in the answer. In the absence of such authority, we think that a correct application of the general principles of law in respect to pleadings requires us to hold that the general denial alone does not put in issue the representative character of the plaintiff.

We are further of the opinion that if the action is by the plaintiff in his capacity of administrator, the judgment is rendered for him in the same capacity. The averments of his representative capacity are substantially the same in the complaint and in the judgment.

We have seen that the evidence is sufficient to support the judgment. The alleged insufficiency of the findings of fact by the court below are, therefore, of no importance. Since the enactment of chapter 264 of the General Laws of 1860, actions at law tried by the court without a jury, and suits in equity, are placed upon the same footing, when appealed to this court, in respect to the power and duty of the comt to review the evidence. Before that enactment it was held, that in actions at law such finding was as conclusive as the verdict of a jury *(Kibbee v.*Howard, 7 Wis., 150); and that if the court failed to find upon any material fact put in issue by the pleadings, due exceptions being taken thereto, the judgment would be reversed on appeal. *Ogden v. Glidden,*9 Wis., 46. It is true that in the latter case the principle was held to apply to both classes of actions. That case, so far as it relates to suits in equity, was *108practically overruled in tbe later cases of *Catlin v.*Heaton, 9 Wis., 476; *Kimball v.*Johnson, 14 Wis., 674; *Felch v.*Lee, 15 Wis., 265; and perhaps in other cases. And as before observedj since the enactment of the law of 1860, actions at law tried by the court without a jury have been, and still are, on the same footing as suits in equity. In either class of actions, proper exceptions being taken, this court upon appeal must review the evidence. *Snyder v. Wright,*13 Wis., 688. Such being the case, there is no good reason why the judgment should not be sustained if the evidence is sufficient to support it, even though the findings may be defective or erroneous.

*By the*Court.— Judgment affirmed.