Burtch v. State ex rel. Richardville

Worden, J. This was a suit by the State, upon the relation of Biehardville, as administrator de bonis non of the estate of Charles A. Maraehall, deceased, against Burteh. One Alvin W. Traey was appointed administrator of the estate of Maraehall, and procured an order from the proper court to sell certain real estate, and the defendant Burteh became his surety on the bond required to be given for the faithful accounting for the proceeds of such sale. Traey having died, and the relator having been appointed as such administrator de bonis non, this suit was brought on the bond thus executed by Tracy, with Burteh as surety, alleging that Traey sold a large amount of land and received the purchase money therefor, for which he failed to account, &c. The defendant pleaded, among other things, that Traey, in Ms lifetime, fully admimstered, paid and accounted for all the moneys wMch came to Ms hands from the sale of said lands, except the sum of $892.31, which the said defendant and Nicholas Smith, (a co-surety,) after the death of Traey, fully paid and satisfied to the plaintiff. To this answer the plaintiff replied, that after accounting for $892.31, and the payment thereof, as in the answer alleged; a further accounting took place in the Court of Common Pleas of Knox county, &c. on Jamcary 12, 1854, in the matter of the administration of the estate of said Maraehall, and by the judgment of said Court thereon the said Traey, as administrator as aforesaid, was found in arrear, and over and above said sum of $892.31, the further sum of $1,125, for which said last mentioned sum this suit is instituted. The plaintiff moved -to reject this replication, but his motion being overruled, he demurred thereto, but the demurrer was also overruled and exception taken. Trial by the Court; finding and judgment for the plaintiff for $1,860.75. John Baiter, for the appellant. Samuel Judah, for the appellee. The ruling of the Court in refusing to reject the replication, and in overruling the demurrer thereto, are assigned for error. The objection to the replication is, that it departs from the ground of action stated in the complaint. We think the objection was well taken. The plaintiff could only recover for money received by Tracy on the sale of land. That is all that is secured by the bond executed by Burtch. The replication does not specify from what source the $1,125 came. The language of the reply would by no means limit the claim to money received for lands, but would admit of proof of the sum named being found in arrear from any other source. Indeed, the replication admits, because it does not deny, that, the moneys received by Tracy on the sale of the land have been accounted for, as alleged in the answer, but sets up a right to recover the $1,125 found due upon a general accounting. This is not only a departure, but an attempt to hold Burtch upon a claim for which he did not make himself responsible. Per Ouriam. — The judgment is reversed, with costs. Cause remanded, &c.