#### Beach *vs.*King.

Where a party sued in this state claims to retain money in his hands as the *administrator*of a deceased person, he must distinctly allege the granting to him of *letters of administration*and the. name of the officer granting the same; it is not enough to aver that he was *duly*appointed administrator of the goods, &c.(a)

Demurrer to plea. The plaintiff declared on the common money counts. The defendant pleaded that the plaintiff’s right to the money mentioned in the declaration, if any-, is as one of the next of kin of Nicholas Beach, deceased, that he the defendant was *duly appointed administrator*of goods, &c., of the said Nicholas Beach, and that the plaintiff had not before the commencement of the suit executed a bond with sufficient sureties to indemnify the defendant, and to refund, &c. To this plea the plaintiff *demurred,*assigning for special causes that it is not alleged in the plea that letters of administration were granted to the defendant, nor by whom granted, nor whether granted under the laws of this state, nor is *proferí*made of them.

*A. Dana,*for defendant.

*B. G. Ferris,*for plaintiff.

(a)

 See Code of Proc. sec, 161; White *v.*Joy, 3 Kernan,- 83.

*By the Court,*

Bronson, J.

The exceptions taken to the plea are, 1. It ia not alleged that letters of administration were granted to the defendant nor any letters of administration brought into court; and 2. It does not appear by whom the defendant was appointed administrator, nor whether he was appointea under the laws of this state.

The defendant can not be administrator, unless letters of administration of goods, chattels, and credits of the intestate, has been granted to him by one of the surrogates of this state (2 *R. S.*73, § 23, 24). The proper mode of pleading the fact, is by a direct allegation that such letters were granted. The defendant has not pursued that course, but pleads that he was *duly*appointed administrator. This allegation consists partly of matter of fact and partly of matter of law, and is not capable of trial. That the defendant was appointed administrator by somebody, or in some form, is a question of fact; but whether he was *duly*appointed or not, is a question of law. The defendant should have stated *hoto*he was appointed, and then the court could determine its sufficiency upon demurrer, or if an issue to the country were joined upon the fact of having obtained letters, the question could be tried by jury.

This case is like that of *The Abbot of Strata Marcella*(9 *Co.*24), where the defendant pleaded that he *lawfully*enjoyed the goods of felons; and the plea *114was held had, because it “ tends to matter in law which is not inquirable by the country.” Lord Lisle’s case is cited by *Coke,*where a man was bound in a bond, and the condition was that he should come to B, on such a day, and there show the obligee a sufficient discharge of an annuity. The defendant pleaded that at the day he offered to show a *sufficient*discharge; and on demurrer the plea was adjudged bad, for it ought to have alleged “what manner of discharge he offered to show, viz., are lease, or a unity of possession, or other matter of discharge, upon which the court might judge of it was suffi[199] cient or not; for the country shall not inquire of it, but it ought to be adjudged by the court, which the judges can not do, if the special matter be not showed to them.”

The objection is taken by special demurrer, and must prevail. It is unnecessary to inquire whether the plea is bad for not making proferí of the let-, ters of administration.

Judgment for the plaintiff