APRIL TERM, 1723.

Lib. P. L. No. 7. fol. 233.

#### Lord Proprietary *against*John Gibbs.

THIS was an action of debt brought upon an administration bond on the estate of *Ralph*Arnults, at the request of *Edward Jones.*The defendant pleaded *special performance. Replication*as follows: “ And the said Attorney- “ General saith, that he, by any thing above alleged from w having and maintaining the action aforesaid for the said *u*Lord Proprietary ought not to be barred, because, protest- “ ing that the plea aforesaid, and the matters therein con- <£ tained, are not sufficient in law to preclude the said Lord “ Proprietary from having and maintaining the same ac- “ tion, or to compel the said Attorney-General to answer “ thereto ; for replication the said Attorney-General saith, “ that the said *J. G.*did not exhibit any inventory of all “ or any of the goods and chattels appraised in money into “ the office for probate of wills, before the, &c. in the con- <£ dition of the same writing mentioned. And this the said “ Attorney-General for the Lord Proprietary prays may ££ be inquired of by the country.

“ D. Dulany.”

*59The defendant demurred to the replication, and assigned for cause, “ for that the replication aforesaid concludes *“*to the country; whereas he ought to have averred his “ plea, that the defendant might have shewed the inventory “ at large, and set forth the goods and chattels, that the “ parties might have traversed the plenitude *thereof;*and “ for that the replication aforesaid is insufficient, and wants “ form, &c.

“ W. Gumming.” -

*T. Bordley*and Howard, for the demurrer. *(D. Dulany’s*short notes.)

The plaintiff assigns for breach, that no inventory was exhibited, and tenders an issue; thereby'he precludes the defendant from pleading in his rejoinder the exhibition of the inventory to the deputy commissary.

In *Vere*v. Smith, 2 *Lev. 5.*where the defendant pleaded that he accounted, the plaintiff in his replication set forth a special breach; to which the defendant rejoined, that he was robbed, whereof he gave the plaintiff notice. On demurrer this held to be good. This case cited to shew that a particular way of accounting is rejoined as matter of excuse. The law allows a general way of pleading to avoid multiplicity and infiniteness. *Mint*v. *Bethil, Cro.*Eliz. 749.

The replication is vicious in form and substance. Inas? much as it does not appear, whether the assignee of the administration bond be a creditor or a legatee; for by the act of 1720, c. 24. a creditor would not be entitled to bring such a suit. A creditor shall not take an assignment of the bond and sue it, and assign for breach the non-payment of a debt to him. *Salk.*316. It appears that the party suing on the bond is a creditor, for a legatee is within the intent of the word creditor by the benign construction of' the act.

The breach ought to appear to be to the damage of the party issuing the writ, for why should any one apply for *60an assignment of the administration bond, unless he were damaged. If suit may be brought where there is no ptejudicial breach, and if not returning an inventory or an account ge considered as breaches, all bonds may be sued on. Make a distinction between inventories and accounts. What is called an inventory, see *Lex Testa.*354. *Godolph.*152. What we call accounts are properly speaking part of the inventories. Returning an inventory is required to be within two months, yet it would be a compliance to bring in an account of the debts within twelve months. Cites *Raym.*470.

There can be no assignment of a breach on a sheriff’s bond, unless it be to the damage of the assignee. A duty may be unperformed, which hurts only the prerogative or the office, in which case there is no one to sue for it. Suppose an inventory had been put in since the time allowed for it, who would have suffered? There would be great inconvenience in putting a bond in suit for breaches against which the assignee had no right to complain. The administrator only could be injured, being chargeable with the whole estate, unless an account be made up.

*D.*Dulany, contra. (Short notes.)

If the defendant had pleaded, by way of rejoinder, the exhibition of the inventory to the deputy commissary, that would have been a departure according to the case of *The Proprietary*v. *Cockshut,*at *September*Term, 1720, where the defendant, after a plea of performance of the conditions of a bond, rejoined *tout temps prist.*(See *ante,*p. 40.)

Every issue consists of an affirmative and negative; that where there is an affirmative and a negative, the conclusion .should be to the country. 1 *Sound.*338. 1 *Vent.*213. 2 *Sound.*189, 190. 1 *Sound.*283. 1 *Sider.*340, 341. *Co. Litt.*126 *a. Telv.*136. *Alexander*v. *Lane.*1 *Saund.*102.

In replevin. Cognizance as bailiff of one that is under a fine. Replication, *quod Mi qui partes,*8fc. *nihil habue**61runt, ought to conclude to the country, and not with an averment. *Lutw.*1623. Contra, 691, 692.

As to the case of *Vere*v. Smith, 2 *Lev.*5. The matter there pleaded was adjudged by the Court to be an accounting ; but here any thing that would be pleaded' by way of excuse must be for not accounting, and would be a departure within that case. And this is clear by *Salk.*520. pi. 22. Surplusage will not make an indictment ill. 4 *Mod.*160. The naming one as executor or administrator, though neither, is nothing more than surplusage. Moore, 684. pi. 944. 887. pi. 1284. Where a thing is not lawful, no advantage can be taken of it. *Faugh.*104. Where the first conclusion is good, and there is after it a bad one, the last is but surplusage. *Palm.*406.

The case cited from *Raymond*is of an executor in *En*glandwho is not required to give any security, and the suit is in the Ecclesiastical Court, which, it seems, determined that they had power to dispense with an oath, which they administer without there being any law to oblige them to administer it. In our case we are upon the footing of a law which requires the giving of security for the safety of orphans. The case shews, what is an inventory, and what things are to be inventoried. In our case, the executor is obliged to return an inventory and an account. He is sworn, and gives security, and if the commissary could dispense with his oath, (which is denied,) he could not with the bond, and if they could with both, it ought to have been pleaded, being matter of excuse, as in 2 *Salk.*520. But here the defendant pleads performance, which implies in itself, that the defendant had not needed any excuse. Suppose the party by pleading had confessed a breach, and said it was no damage to any one, would that have been a good plea?

The act restraining the rigour of suing administration and testamentary bonds, relates merely to creditors. *Fide*act, 1720. c. 24. By the act of 1715, c. 39. sect. 3. administration is revokeable, and the bond may be sued on for *62not returning an inventory. If objected to this, that such remedy is given only to the administrator *de bonis non,*&c. Answer. The administrator is not appointed for his own sake, but for the benefit of the relations of the deceased, and he has no right *ad*rem, but *in re,*for the good of others. It is an absurdity to say, that persons for whose advantage the law was made shall not have the benefit of *it;*and suppose the administrator *de bonis*non, &c. should not sue the former administrator, must not the relations of the deceased do it? But the act of 1720, c. 24. puts the matter beyond dispute.

The Provincial Court gave judgment on the demurrer for the defendant, and that *Edward Jones,*at whose instance the suit was brought, pay the costs.

The judgment of the Provincial Court was reversed in the Court of Appeals at *October*Term, 1729.