Potter v. Titcomb , 10 Me. 53 ( 1833 )

The opinion of the Court was delivered at the ensuing April term in this county by

Mellen C. J.

This case is again before us on special demurrer, in consequence of the amendment of the pleadings under leave granted for that purpose. See 7 Gregnl. 302 — 337. The plaintiff's surrejoinder is the subject of the demurrer; and to the question as to its sufficiency or insufficiency all the authorities produced and arguments urged have had immediate reference.

The plea in bar is intended as a special performance; and as such it has been considered by the plaintiff. In the replication he assigns a breach, which, stripped of its technical phraseology, amounts to this; namely, that the two promissory notes therein described, given by the defendant to the deceased came to, and were in ike knowledge of the defendant, within three months next following the date of the bond declared on, a part of the goods and chattels, rights and credits of the said Moses Titcomb; and that it was the duty of the defendant to have caused them to be inserted in the inventory of the deceased’s estate; but that the defendant neglected so to do. The defendant in his rejoinder alleges that the notes described in the replication were not known and admitted by him to be due and a part of the goods and chattels, rights and credits of said Moses Titcomb to be administered on, in manner as alleged by the plaintiff. In the surrejoinder the plaintiff alleges that the notes set forth in the replication and at the time therein mentioned, were justly due from the defendant and were a pari of the goods and chattels, rights and credits of said Moses Tit-comb ; of all which the defendant was well knowing within the three months beforementioned ; and the surrejoinder concludes to the country. The questions are, whether it is good in substance and in form. That part of the condition of the bond to which the alleged breach has reference, required the defendant to make a true and perfect inventory of all and singular the “ real estate, goods and chattels, rights and credits of said de- “ ceased,” which had or should come to his hands, possession or knowledge, or into the hands or possession of any other person or persons for him, and the same, so made, to exhibit or cause to be exhibited upon oath into the registry of the Court of Probate within three months from the date of the bond. Has this part of the condition been performed ? If the facts stated in the surrejoinder are well pleaded, then they are admitted by the demurrer; and if they are admitted, then the fact is, that the defendant did not make a true and perfect inventory of all the property of the deceased which had come to Ms knowledge before he made and exhibited the inventory. As a perfect inventory, according to the condition of the bond was to be made and exhibited within a specified and limited period, a delay to make and exhibit it within that period would have been a breach ; the condition required no notice or request to the defendant to perform this duty, which by the terms of the condition, he had agreed to perform. If the omission to include the two notes in the inventory, was a breach of the condition, we need go no further : We need not inquire whether an inventory and an account are considered the same thing; or whether more than one inventory can ever be required ; or in what cases a citation to an administrator is necessary. We pass over these inquiries, though the opening counsel for the defendant has seen proper to dwell upon them. With respect to his proposition that the part of the condition respecting the making and returning an inventory, is saved, if any inventory is returned, whether true or false, if returned within three months, we will only say, that we deem it utterly destitute of any legal foundation. The counsel asks whether an administrator is bound to inventory property which he does not know to belong to the intestate, or which he claims as his own. It is not necessary to answer these questions, if the surrejoinder is well pleaded; for if so, as we have before' .said, the facts it states are admitted, viz. that the notes were due — were a part of the estate of the deceased —■ and that he knew both those facts. But in the cases supposed by the above questions, an administrator might comply with the terms of the condition of the bond by inserting the property in the inventory, accompanied in the one case with a statement of the doubt as to ownership ; and in the other, with a statement of his own claim of the property as his own. By this course, the condition of his bond, and his own rights would be saved. There can be no doubt that an administrator is as much bound to inventory-notes or bonds due from himself as from others. He cannot sue himself it is true, but he can and ought to place on record their amount for the benefit of all concerned; otherwise, in case of his death, an administrator de bonis non might never arrive at the knowledge of their existence.

We now proceed to examine the causes of demurrer.

The first three and the 5th, 6th and 7th causes assigned, amount in fact, to the same thing, namely, that the surrejoinder does not traverse or deny the rejoinder, nor confess and avoid it.

The 4th cause is partly of the same character, and also has reference to the manner in which the surrejoinder is concluded to the country.

The 8th is that it is double and multifarious.

The 9th is merely formal.

To understand and appreciate the causes assigned, of the first class, we must look to the facts composing the rejoinder; which are, that the two promissory notes were not known and admitted by the defendant to be due, and a part of the estate of the intestate. In the surrejoinder the plaintiff passes over and takes no notice of the defendant’s non-admission of his indebtedness and that the notes were a part of . the intestate’s estate, and traverses merely the defendant’s alleged want of knowledge of those two facts. It can require neither argument or authority to prove that where a man is under a legal obligation to do a certain act, he cannot excuse his non-performance of the act, merely by alleging that he does not admit the existence of such legal obligation. To sanction such logic in a Court of law would be to constitute every defendant a judge in his own cause, and the manufacturer of his own defence. The defendant, by the condition of the bond, was bound to inventory all the property which, to his knowledge, belonged to the estate of the intestate, whether he admitted the fact to be so or not. The allegation in the rejoinder, therefore, as to what the defendant did or did not admit to be true, is of no importance; it is an averment wholly immaterial, which the plaintiff was not bound to notice in his surrejoinder. “ The “ general rule is that a traverse must be taken to some material “ point alleged by the adverse party, which, if found for him “ who takes it, absolutely destroys the adverse party’s right, by “ shewing he hath none in manner and form as he has alleged.” 2 Saund. 5, 175, note 1; 5 Bac. Abr. 390 ; Roll. Rep. 235. “ Where the allegation is not material it cannot be traversed.” 1 Ch. Pl. 586. Suppose that the defendant in his rejoinder had merely alleged that the notes were not admitted by him to be due and a part of the estate of the deceased; surely, in such case, it would have been bad on demurrer, as containing nothing but an immaterial and useless allegation. The character of the fact alleged did not become in any manner changed by being connected in the rejoinder with the other fact, namely, that the notes were not known to be due and a part of the estate of the deceased. As this alleged want of knowledge on the part of the defendant, is the only material fact averred in the rejoinder, we are well satisfied, for the reasons given, that the traverse of that fact was proper; and that the surrejoinder is not bad for any of the causes assigned, of the first class.

We are equally clear that the fourth cause assigned, is insufficient. When the plaintiff denies the fact stated in the plea, whether in cases of contract or tort, a replication to the country is frequent; and it is the better and shorter way. 1 Ch. PI. 592. The same principle is equally applicable to a rejoinder and surrejoinder. “ Where there is an affirmative on one side “ and a negative on the other, or vice versa, the conclusion must “ be to the country.” 1 Saund. 103, note 1, and cases there cited. The only material fact alleged in the rejoinder is the defendant’s want of knowledge that the notes were due and a part of Moses Titcomb’s estate; and this fact is expressly denied or traversed by the surrejoinder. Upon the correct principles of pleading, the conclusion to the country was strictly proper.

The multifariousness and duplicity complained of in the 8th cause assigned, are, that the notes in question at the time the inventory was made and returned, were due, and a part of the estate of the intestate, and that the defendant well knew those facts. These are alleged to be separate, distinct, issuable facts. Chitty, vol. 1, page 512, says, “ The defendant is not preclud- “ ed from introducing several matters into his plea, if they are “ constituent parts of the same entire defence and form one “ connected proposition. Thus in detinue at the suit of a feme, the defendant pleaded that after the bailment of the goods to “ him by the plaintiff, she married E. F. and that during the “ marriage, E. F. released to him all actions. It was objected “ that the plea was double, viz. property in the husband and a “ release by him; but it was resolved not to be double, because “ he could not plead the release without showing the marriage.” — To same point are Robinson v. Rayley, 1 Bur. R. 316. Lord Mansfield says, “ Tis true you must take issue on a sin- “ gle point; but it is not necessary that this single point should “ consist only of a single fact.” — To the same principle are Strong & al. v. Smith, 3 Caines, 160; Currie & al. v. Henry, 2 Johns. R. 433; Patcher v. Sprague, ib. 462; and it is equally applicable in any stage of the proceedings. In the case before us both the facts stated in the surrejoinder were necessary. For if the notes in question were a part of the estate, still if the defendant did not know the fact, it would have been no breach of the condition not to inventory them. In the replication it is stated that both the notes are negotiable ; and it is no where stated that they were in the possession of the defendant, but only that they came to and were in his knowledge. As they might have been in the hands of an indorsee, unknown to the defendant, it was necessary to bring his neglect within the terms of the condition to allege that the notes, at the time mentioned, were due to, and a part of the estate, and that the defendant knew it. This objection, therefore, has no legal foundation.

The opinion of the Court is, and they accordingly adjudge that the surrejoinder is good and sufficient.