delivered the opinion of the Court—
The 35th section of article 2, chapter 37, of the Revised Statutes, requires that: “All demands against
The 36th section of the same article and chapter, provides that: “If any part of the demand has been paid, or there be any just off-set or discount against the same, or any usury embraced therein, the affidavit shall state the amount of the payment or usury, when the payment was made, and when the off-set or discount was due to the best of affiant’s knowledge and belief. The verification as above shall not be held to dispense with other proof as heretofore required by law. No recovery shall be had of any such demand until such affidavit be made and filed in court.”
The Code of Practice, page 123, section 473, declares that: “No suit shall be brought against a personal representative until after a demand is made of him, accompanied with the affidavit required.”
This suit is brought by B. H.'Thomas against the executors of Redman G. Thomas for services averred to have been performed by him for the testator in his life time. No separate affidavit appears to have been made and presented to the executors, nor any demand made for payment before the commencement of the suit, as required by the provisions above quoted. But the petition, without averring any demand, avers all else required to be contained in an affidavit; and the petition is sworn to. This, according to the express provisions of the Revised Statutes and of the Code, is not a compliance therewith. But the defendants appeared and answered without making any objection for want of a previous demand, accompanied by an affidavit. When, however, the plaintiff was through his testimony, and no proof having been made of a demand and of the requisite
It was not necessary that the petition should contain any averment that a proper affidavit had been presented to the defendants, and a demand made of them for payment. The cause of action was complete, and the petition would be good without such averment. A cause of action may exist, and yet it may be necessary to take some preliminary step, before a party has a right to institute a suit. The steps required by the above recited sections of the Revised Statutes and of the Code, do not affect the merits of the action. A just demancl, in and of itself, is as meritorious without as with the preliminary steps required to be taken before the commencement of suit.
It is required that, before a non-resident shall commence a suit, he shall give bond with surety for costs ; and this requisition has never been construed as affecting the merits of an action. Whenever a nonresident has brought his suit without first having given bond with surety for costs, it has never been regarded as constituting a bar to the action, but as matter in abatement only. And, until pleas in abatement were abolished by the Code, a defendant wishing to avail himself of a failure in this respect, had either to plead it in abatement, or have the defect remedied by
Iii the present case the defendants appeared and answered to the merits of the action, making no objection for the want of affidavit and demand before suit, and we think it was too late, after the plaintiff had gone through his testimony, to raise his objection for the first time, that the plaintiff had not complied with this preliminary duty. Pie might, indeed, have made a demand, accompanied with the required affidavit, before the commencement of his suit, and not be prepared to show it on the trial; when, if objection had been made before entering upon the trial, he might have prepared himself to prove it, or asked a continuance for the purpose of getting his proof upon the subject, if he could not obtain it in time for a trial at that term. The Code does not point out when, nor in what way, objection is to be taken for a failure to make the requisite demand and affidavit, but we think the most appropriate mode is, by way of affidavit by defendants before answer, that the preliminary steps had not been observed by the plaintiff as the foundation of a motion for a rule against him to produce evidence of his compliance with the necessary pre-requisites. Upon such affidavit and rule being made, the plaintiff, if he had, in fact, made the proper demand and affidavit, should then make it manifest, or ask time to do so. And, if the demand and affidavit had not in fact been made, the suit should be dismissed without prejudice.
It is declared in the said 36th section of the Revised Statutes, that “No recovery shall be had of any such demand, (as mentioned therein,) until such affidavit be made and filed in court. But, as the affidavit, upon principle, cannot be regarded as affecting the merits of the demand sued for, a failure to require its production before answer, should be esteemed as a waiver of obj ection for the want of it. Notwith
In this case, however, the allegations of the petition contain all that is required in an affidavit by the Revised Statutes. The petition is sworn to, and this was a substantial compliance with these requisitions, though not with the requisitions of the Code.
But we think the court erred in the qualification given to instruction No. 3, asked by the defendant. This instruction, in our opinion, was right as asked; and the qualification, if it does not neutralize it, was certainly misleading. The instruction as asked is, in substance, that from the settlement alluded to, the jury might infer that the present demand had been included therein; and the qualification seems to require of the jury to believe from other proof that this demand had,in fact,been included, before they would have any right to draw the inference from the facts hypothecated, that the demand had been adjusted in that settlement. The court also erred, as we think, in submitting to the jury the question whether the payment for the services of the plaintiff was to be made annually, or only at their termination. This was a question of law, and should have been decided by the court. In our opinion, the fair construction of the agreement as averred, is, that the services were to be paid for annually. It was certainly not the un
Wherefore, the judgment is reversed, and the cause remanded for a new trial and further proceedings not inconsistent with this opinion.