Opinion
February 12, 1897.
A. brought suit on the bond of an administratrix alleging several breaches, the estate not having been represented insolvent. Defendant's plea set forth the insolvency of the estate; this plea was overruled and judgment entered in favor of the plaintiff for the penal sum of the bond. Held, that as the plaintiff had a cause of action for a distinct breach of the bond, and the estate had not been represented insolvent at the time of beginning the suit, the judgment against the defendant was rightly entered. Second head note to report of this case on the demurrer, 18 R.I. 749, modified. A general demurrer to a declaration containing several counts, one of which sets forth a good cause of action, was necessarily overruled, without affirming the validity of the remaining counts.
DEFENDANT'S petition for a new trial.
Harry C. Curtis, for plaintiff.
Hugh J. Carroll, for defendants.
The court is of the opinion that the defendant's exceptions must be overruled. The plea of insolvency is no answer to the action. At the time the suit was brought the estate had not been represented insolvent, and, as decided on a previous demurrer, the plaintiff had a cause of action for a distinct breach of the bond. The judgment of the Common Pleas Division was therefore rightly entered for the penal sum of the bond. Upon chancerization the court can pass upon the effect of rendering the estate insolvent.
In view of the opinion and second head note printed in this case in 18 R.I. 749, the court thinks it proper to state that the case was before us on a general demurrer to the declaration because the suit had been brought upon the bond within three years from the grant of administration. Inasmuch as the second count of the declaration alleged a specific breach of one of the conditions of the bond, for which an action could be maintained, the demurrer to the third count referred to in the opinion was necessarily overruled, because the plaintiff had a right to maintain the action upon the breach set up in the second count. The court did not intend to be understood as saying that, under Pub. Stat. R.I. cap. 189, § 12, a suit could be brought on a bond within three years for some neglect to pay a debt not connected with a breach of any of the specific conditions of the bond.
Defendant's petition for a new trial denied, and case remitted to the Common Pleas Division for further proceedings.