Nelson v. Woodbury

Mellen C. J. after briefly stating the substance of the pleadings, delivered the opinion of the Court as follows: There seems to be no doubt that the rebutter is double, as it presents two distinct and independent facts, and offers to put them in issue. Duplicity, however, must always be taken advantage of on special demurrer; and a special demurrer for duplicity must always expressly and particularly set forth wherein such duplicity consists. But we do not find it necessary to decide whether the special demurrer in this case be technically precise or not; because, admitting the argument of the plaintiff’s counsel to be correct, and the rebutter to be insufficient, i is our duty to look at the first fault in the pleadings, and if, on examination, the surrejoinder should be found insufficient, the defects of the rebutter will be of no importance. The only new facts alleged in the surrejoinder are, that the commissioners allowed certain claims against the estate, and among them the claim of Davis; and that their report was delivered to, and received by Woodbury to be by him delivered to the Judge of Probate; which he neglected and refused to do. By law it is the duty of commissioners to make their own return to the Judge of Probate. The commission under which they act contains a mandate to this effect; and it is no part of the official duty of an administrator to receive the report of commissioners and carry or send it to the Judge or to the Probate office. No such obligation is imposed by the condition of the administration-bond. It being, then, no part of Woodbwffs duty. [254] bis engagement to the commissioners to deliver their report to the Judge could only bind him in his personal capacity, and not as administrator ; and it could not bind his sureties in any man* ner whatever. A point very similar to this was decided in Waterhouse v. Waite, 11 Mass. 207. In that case the plaintiff demanded damages of the defendant for an alleged neglect of Thurlo, one of his deputies, in not returning an execution which he had extended on land, to the registry of deeds, to be recorded within three months, whereby the plaintiff lost the benefit of his extent.— Thurlo had charged, with his other fees, the price of recording the execution, and had received the amount of the plaintiff. The Court decided that if there had been an express promise on the part of Thurlo to procure the registry of the execution and return, such promise and Undertaking could not bind the sheriff, it being merely a personal engagement, and not an official act which he was under any obligation to perform. But this is not the only difficulty on the part of the plaintiff. If Woodbury had returned the report of the commissioners to the Judge of Probate, according to their expectation and his own engagement, containing an allowance of the claim of Davis ; still this action could not be maintained, unless a decree of distribu-yo i had been passed by the Judge of Probate, founded on the report of the commissioners; and unless also the creditor Davis, for whose benefit this action is brought, had demanded his dividend of the administrator; This mode of proceeding is directed, and this kind of proof is rendered necessary by the statute regulating proceedings on administration-bonds, prior to the instituting of an action by a creditor for such dividend. The conduct of Woodbury is certainly liable to suspicion. But the creditors are not without remedy, if he be disposed to mis-manage the estate, and has actually used means to suppress the report of the commissioners, or defrauded those concerned. The Judge of Probate may remove him from office, and appoint some person who will faithfully close the administration of the estate. The surrejoinder is adjudged bad and insufficient; and judg ment must be entered for the defendants for their costs.