¶1This suit was brought by appellant in the capacity of administrator, against appellee.
¶2The plaintiff in his declaration alleged an indebtedness by the defendant to the intestate in his lifetime, and that letters of administration were duly granted by the Probate Court of Miami county, Ohio. The defendant pleaded general issue and set-off. On the trial plaintiff proved the indebtedness as alleged, and also offered in evidence a duly certified copy of his letters of administration.
¶3The Circuit Court rejected the proof as to the grant of administration, and instructed the jury to find for the defendant, which, was done, and judgment was rendered against the p’aintiff for costs. This action pf the court was no doubt based upon the view that the Probate Court of Ohio had no power to grant the letters of administration, because the deceased was a resident of Illinois at the time of his death. There was evidence tending to prove that such was the case, and it is argued by counsel that when it appeared to the court .that for this reason the letters of administration were improvidently granted, it was tlie duty of the court to ignore the plaintiff’s right to sue, and by the instruction given, end the case. The evidence as to the residence of the intestate came out incidentally and is not conclusive, by its direct effect or by necessary inference; conceding, however, that the proof fairly shows, as urged, that the residence was in Illinois, and that administration in chief should have been granted in this State, still it is clear the action of the court was erroneous. There was no plea under which such a question could arise. If the defendant desired to dispute the right of the plaintiff to sue in the capacity of administrator he should have interposed a plea to that effect. The right of the plaintiff to sue as administrator not. having been put in issue by plea it was not necessary to make any proof in respect to his appointment or his right to sue in the assumed capacity. Collins v. Ayers, 13 Ill. 358; C. L. N. Co. v. Browne, 103 Ill. 317; Transit Co. v. Shacklet, 119 Ill. 238; 1 Chit Pl. 489, and notes. The defendant, by his pleading, waived the question.
¶4The judgment will be reversed and cause remanded.
¶5Reversed and ‘remanded.