Opinion
May Term, 1817.
The modern practice in suits on bonds with conditions is to set forth the bond and condition in the declaration, and assign the breach, to which the defendant pleads, and issue is joined. (See Code, 2939, No. 12; Smith v. Eubanks, 9 Y., 20; Michie v. Governor, 4 Hum., 486.)
It is a good breach of an administrative bond in a declaration against the sureties, to aver "that the administrator had not well and truly administered the goods and chattels of the intestate according to law."
And it is not wrong in the declaration to claim the penalty of the bond; for this is agreeable to 1801, 6, 66 (Code, 2976), which directs judgment to be entered for the penalty, to be discharged by by the damages assessed.
Verification is not proper where the matter of the plea is in direct opposition to the declaration; it is only proper where there is new matter in the plea that the replication may traverse or avoid. (Acc. McKaimy v. Kellar, 3 Y., 432.)
It is not a good plea to an action upon an administration bond reciting a judgment against the administrator, that the judgment was against him proprio jure; for this is equivalent to saying there is no such record as that stated in the declaration, and the proper plea is nul tiel record.
Nor is it a good plea that no process was served upon the administrator in the original suit, for he may have appeared without service. (See Peck, 177; 4 Y., 461; 5 Y., 104.)
Nor that the administrator was taken by a ca. sa. on the judgment; for that is no satisfaction or extinguishment of the demand.
The sureties are, perhaps, not concluded by the former proceedings, being no parties to them, and may rely upon the plea of fully administered.
By statute (Code, 2935, 2936), amendments may be allowed after judgment on demurrer, and the party against whom a judgment on demurrer is rendered may plead over as a matter of right. (See Overton v. Crabb, 4 Hay., 109.)
Lillard and Hough were sureties in an administration bond with William Neely, administrator of Isaac Lillard. The plaintiffs sued Neely as administrator for a debt due from Lillard in his lifetime. Upon the plea of payment, they obtained judgment, and took out a fi. fa., to which nulla bona was returned. All this is stated in the declaration, after which it is also stated therein that the administrator had not well and truly administered the goods and chattels which were of the said Isaac Lillard according to law, by virtue of which the plaintiffs were injured, and obtained an assignment of the bond, by reason whereof an action hath accrued to demand and receive of rue defendants $20,000, the penalty. Nevertheless, the defendants of Neely have not paid to the governor or his successors, or the plaintiffs, the said sum of $20,000, c. The defendant prayed over of the bond and condition, which is again set out; and then pleaded: First, performance generally. Secondly, kept and performed, c. Thirdly, fully administered. Fourthly, to the same effect. Fifthly, the judgment against Neely was in proprio jure, and not as administrator. Sixthly, fully administered before notice of the debt of the plaintiff. Seventhly, nul tiel record of that judgment. Eighthly, no process served on Neely before the judgment. Ninthly, the governor did not assign. Tenthly, Neely did not waste to the amount of $20,000. Eleventhly, after judgment Neely was taken by ca. sa. All these pleas conclude with a verification. There is a demurrer and joinder upon all these pleas but the seventh and ninth. As to these the opinion of the Court is not required.
The first question is, Is there a breach well assigned in the declaration? The old way was to declare upon the bond, the defendant craved over of the bond and condition, which being set out, he pleaded performance of the condition, to which the plaintiff replied setting forth a breach specially, upon which issue was joined. Cro. E. 749. The modern practice is to set forth the bond and condition in the declaration, and assign the breach, to which the defendant pleads, and they go to issue. The plea of the defendant must state a special performance, showing when, where, and how he performed. He must conclude so as not to make necessary any reassignment of the breach, just as he would meet a breach assigned in the replication to a plea of general performance. 2 Johnson. 413.
The breach in this declaration need not be more special than it is. 2 Sand. 411 in a note. It passes over the inventory and the distribution, and fixes upon non-administration according to law, the matter that is injurious to them. The amount of assets that came to his hands is stated. It might have stated that he did not pay the sum recovered, but even then the evidence would not be more narrowed down to a point. For with or without that particularity he must have produced evidence of the state of his assets and disbursements. It states a debt due and judgment for it; the obligation of the sureties; the failure of the administrator to pay; the sufficiency of the assets that came to his hands, and injury thereupon, and a right to demand the amount of $20,000. The defendants are apprised of the testimony to be offered against them. And if all be true that is stated in the declaration, the defendants can not but be liable to the plaintiff, though the several parts are not stated in the best possible form. It is not wrong to claim the penalty of the bond, the $20,000. It is agreeable to our Act of 1801, c. 6 section 66, which directs judgment to be entered, for the penalty, to be discharged by the damage assessed by the jury similar to the British practice under the Act of 8 9 Wm. III. c. 11, section 8.
As to the pleas, the first, second, third, fourth, and sixth are affirmative pleas, containing a negative of the breaches stated in the declaration. They are in direct opposition to the matters stated in the breach, and that makes an issue. As much as a breach in the affirmative and a plea in the negative of that matter. In either case, the plea should offer an issue. For a verification must produce a replication denying the plea, and upon that the same issue, as if it were joined upon the plea. Simplify it. You did not administer: answer. I did; replication, you did not. How does that differ from this statement? You did not administer: answer, I did, and issue upon that. It eventuates in the same contest, one by circuity and the other directly; therefore the issue ought to be offered at once. Verification is not proper where the matter of the plea is in direct opposition to the declaration, it is only proper where there is new matter in the plea that the replication may traverse or avoid. Let us give an example. The plea is fully administered; the replication is that he has assets; this is in words affirmative, in matter negative, therefore it must conclude to the country. Yelv. 137. The breach in a declaration is that he did not pay at the day, the plea that he did must conclude to the country, though the words be in the affirmative. Carth. 88. These pleas, therefore, are not improperly concluded.
The fifth plea says the judgment against Neely was in proprio jure, and not as administrator. This is, in effect, to say, there is no such record as that stated in the declaration, and then the plea ought to say directly nul tiel record, concluding as this plea is concluded (5 Com. Dig. D. 2, W. 13), and thereupon the Court would have commanded the plaintiff's to produce the record, and would have given a day to produce it. 2 Chitty, 602, 603. This is the proper plea where there is no record, or one variant from that set out. 5 Com. Dig. 2, W. 38; 6 Com. Dig. Record C. If it were deemed right to state the import and effect of the record then the plaintiffs must rely upon the import or effect, and issue be taken upon it, which at least produces prolixity, if not perplexity, as to the mode of trial.
The eighth plea is, that no process was served on Neely before the judgment against him. The judgment indeed would be void if Neely had no notice to defend himself against it. But he might have had notice without service of process. He may have admitted service, and it appears by the record that he pleaded the plea of payment. Appearance cures the want of process.
The eleventh plea is, that Neely was taken by a ca. sa. Answer: That is no satisfaction of the demand or extinguishment of it. Bl. 1235; Kidd. 72, 75; 3 Mod. 86.
It may be, and very probably is, true that the sureties have a right to urge and prove the plea of fully administered, and that they are not concluded without notice of the former proceedings, being ex parte as to them. But then they ought to state this plea so as to induce an issue without circuity.
The next inquiry is, What is the consequence of a wrong conclusion? Upon general demurrer, being matter of form, the Court will not consider it as fatal to the plea, since the Statute of the 4 5 of Anne c. 16. It must be demurred to specially, and then the Court will set aside the plea. 1 Saund. 183, note 1; 5 Com. Dig. Pleader, E. 32. But then our Act of 1809, c. 49, section 21, is interposed, and prevents the judgment which would have been given before it. "No summons, writ, declaration, return, process, or other proceeding, shall be abated or quashed, for any omission, defect, or imperfection, but The Court shall permit either of the parties to amend," c.
Let the parties amend on both sides, and go to issue.