State ex rel. Barrell v. Chrisman

Perkins, J. Debt upon an administrator’s bond against — 127 — him and his sureties. The plaintiff is The State upon the relation of Barrell and Hannah. The defendants are, John Chrisman, John H. Nelson, Simon Emmert, Samuel Miller, David Bush, William D. Porter, Caleb Osborn, and John Porter. The date of the bond is alleged -to be the 29th of September, 1838. John Chrisman is the administrator, and upon the estate of John Galvin, deceased. The condition of the bond is stated in the declaration; and, according to that statement, is in the usual form of an administrator’s bond. The declaration alleges that, in April, 1840, Barrell and Hannah obtained a judgment against Chrisman, as administrator, upon a debt due from Galvin, and that an execution upon it was returned, no goods, &c., of the deceased Galvin’s estate. It then assigns four breaches of the condition of the bond by Chrisman. The first is, that he had received a large amount of the effects of Galvin with which he should have paid said judgment, but that he had wasted them, &c. The other breaches need not be stated. The defendants pleaded separately, and filed, in the aggregate, fifty-one pleas. The case went off upon demurrer in favor of the defendants; and we shall find it necessary to state but one of the pleas in determining upon the correctness of the decision below. The 8th plea of William D. Porter was as follows: “ The said defendant says actio non, because he says that the said John Chrisman, on the 29th of September, 1838, in the vacation of the Boone Probate Court, took out special letters of administration on the estate of one John Galvin, deceased; and the supposed writing obligatory in the plaintiff’s declaration set forth, was the supposed bond of the said John Chrisman, and the other defendants herein, for the faithful discharge of his duties as such administrator; and the said Hooks Probate Court, at its session next ensuing the date of said bond, did not confirm the said special letters of administration, nor continue said bond. And the said defendant avers that, from the 29th of September, 1838, until the end of the next session of the said Probate Court thereafter ensuing, the said John Chrisman was not guilty of any of the said supposed breaches of the condition of said — 128 — bond. Without this — that the said John Chrisman was the administrator of the goods, chattels, rights, &c., of the estate of the said John Galvin, deceased, at any time after the end of the session of the Boone Probate Court next succeeding the said 29th of September, 1838; and this,” &c. To this plea the plaintiff replied, giving a minute history of Chrisman’s vacation-appointment, and averred, “that the said John Chrisman, under and by virtue of said appointment, took upon himself the burthen of said administration, and possessed himself of the goods, &c., of said estate, and proceeded to make an inventory, &c., thereof, (the said John Porter assisting, &c.); and afterwards, and before the term of said Probate Court next ensuing his said appointment, said Chrisman caused said inventory, &c., to be filed in the office of said clerk of said Probate Court; and at the term of said Court next ensuing said appointment of Chrisman, to-wit, at the November term, 1838, said Court (whereof Samuel McLean continued to be judge, and who, as such, in vacation, approved said Chrisman’s said bond), made no order of record in relation to said appointment and said bond; nor did the said Court, at said November term, 1838, or at any other term, ever recall or set aside the appointment of said Chrisman, or disapprove of said bond, or appoint any other administrator of said estate, or make any other appointment of said Chrisman, as such administrator; nor was any other or different administration of said estate ever granted, than said appointment of said Chrisman as aforesaid made; nor was any other security ever given by or on behalf of said Chrisman in the premises, than the bond aforesaid; and said plaintiff further avers that, by virtue of said vacation-appointment, Chrisman continued to act as administrator for many years after said November term, 1838, and made reports of his doings as such to said Probate Court, which said Court received and acted upon, and further dealt with and treated said Chrisman as administrator as aforesaid, under and by virtue of his said vacation-appointment, and after the said November term, 1838; and while said Chrisman so continued to act as such administrator, under his said appoint — 129 — ment, he, the said Ghrisman, committed the grievances, &c., complained of, &c., which the plaintiff is ready,” &c. To this replication a demurrer was sustained, and final judgment given for the defendants. The replication was to several pleas, all similar to the one we have set out; and what we shall say will apply to all of said pleas. The plea in question was drawn with an eye to the following provisions of the R. S. of 1838, p. 178, s. 18. “When any person shall-die intestate in the vacation of said Court, [Probate Com’t,] and his or her estate is in such condition as to require the immediate care of some person of competent integrity and ability, it shall be lawful for the clerk of such Court, in the county in which, by the conditions of this act, administration shall be granted, to grant some such person special letters of administration on the estate of the said deceased, until the next ensuing session of said Court.” “Provided, that such Court, at its next ensuing session after the granting of such special letters of administration, at its discretion, may confirm or revoke the same; and if such Court shall confirm the granting of said letters, it may, at its discretion, either continue the bond taken as aforesaid by said clerk, or require such administrator to renew said bond, conditioned as aforesaid; and if such Court shall revoke such letters, it shall proceed to grant general letters of administration to such person or persons as are or may be legally entitled to the same.” The plea is what is called a special traverse, and its inducement must be, in substance, a sufficient answer to the declaration, though not a direct denial, nor yet a confession and avoidance, of it, and the traverse with which it concludes must go to a material point which will try the merits of the cause. We think this substantially such a plea. The declaration goes upon a general appointment as administrator, and alleges breaches occurring nearly two years subsequent to the appointment. The plea, in its inducement, states the appointment to be a special one, made by the clerk in vacation, to continue till the — 130 — next term of the Court; that the appointment was not confirmed at that term, and that no breach occurred prior thereto. Now, as the clerk had only power to make an appointment that should continue till the next term of the Court, and as that made was not, according to the plea, confirmed at that term, it would seem that Chrisman could not have been administrator of said estate at the time the alleged mal-administration took place; and if not, his sureties could not be liable for it. As to the traverse, it denies directly that Chrisman was administrator at the time of the commission of the alleged breaches. The decision of that question would certainly determine the merits of the case. It has been objected that the special traverse was not the proper plea to have been adopted on this occasion; that it should have been a simple traverse of the fact that Chrisman was administrator at the time of the alleged breaches. Suppose this to be true, as to which we give no opinion, still, as the plea adopted contains that very‘traverse, the inducement can be regarded as nothing worse than surplusage, which does not vitiate upon general demurrer, as upon which we must decide upon this plea. The plaintiff, then, not seeing fit to demur to the plea specially, and it being good, as we have seen, upon general demurrer, what course was left for him to pursue in regard to it? Stephens, in his work on Pleading, p. 189, says: “ As the inducement of a special traverse, when the denial under the absque hoc is sufficient, can neither be traversed nor confessed and avoided, it follows that there is, in that case, no manner of pleading to the inducement. The only way, therefore, of answering a good special traverse, is to join issue upon it.” See, also, The Mayor of Oxford v. Richardson et al., 4 T. R. 437; and Benner v. Elliott, 5 Blackf. 451. And this is but the general rule as to all good traverses. There cannot be a traverse upon a good traverse, and there cannot be a confession and avoidance of a good traverse. Issue must be taken on it. In this case, suppose the defendant had' simply traversed the fact that Chrisman was administra ? tor, could it have been possible for the plaintiff to have confessed the fact that he was not administrator, and still avoided it so as to hold him liable as being administrator? It remains but to determine whether the replication in this case does take issue on the plea. The plea is, that Chrisman was not administrator at the time of the alleged breaches. The replication should have simply and directly joined issue upon it. It does not do this, but recites facts and circumstances going to show that Chrisman was administrator, but not such, we think, as, if true, would establish the fact. The Probate Court is a Court of record. A record of its proceedings is required by law to be kept. Its acts are evidenced by its records. It is admitted in the replication in this case that the Court made no entry of record continuing Chrisman in office, or continuing his bond in force. It is not alleged that any such order was announced by the Court, and omitted by the clerk to be recorded. The appointment must have been continued by the Court at the term next after it was made, or it then expired, and no subsequent attempt to continue it could avail. The only fact relied on to evidence such a continuance is, that at said next term Chrisman made report of his doings to that time. This he was bound to do if not continued. The fact, therefore, is of no importance to the question before us; and it will hardly be contended, we think, that any mental determination on the part of the Court, unrecorded and unannounced, could be taken as a continuance of this appointment. Such a doctrine would be too great an outrage upon the rights of the sureties, who would have a right to look to the record to ascertain the continuance or non-continuance of their liability. We think the replication does not show that Chrisman was continued in office. Another point must be noticed. Nelson, one of the defendants, filed the following plea, verified by oath, viz.: “that the said supposed writing obligatory in the declara* tion mentioned, was signed by him upon condition that twelve or fifteen other good men signed it, which was not done; and that unless said number of persons did sign — 132 — it, it was not to be considered his deed.” Demurrer to the plea sustained. R. A. Lockwood, for the appellant. /. S. Watts, for the appellees. This plea admits the signature to the bond, and does not deny that the same was delivered to the obligee. When so signed and delivered, it became absolute. Petersdorf vol. 9, p. 109, n., says, “ if the delivery be to the party himself, it is no escrow; see Hob. 246; Cro. Eliz. 520; for it makes the deed absolute; see 1 Dyer, 34, pl. 25.” Pauling et al. v. The United States, 4 Cr. 219, and Moss v. Riddle, 5 id. 351, are to the same effect. The demurrer to this plea was rightly sustained. Per Curiam. The judgment is affirmed with costs, &c.