United States v. Walker (109 U.S. 258)

The declaration contained two counts. The first count set out the obligation of the bond without stating the condition. The second count stated the obligation of the bond and averred the condition as above set forth, and assigned as breach the failure of Charlotte L. Ames to pay over to Wilson, the administrator de bonis non, the said sum of $34,876.75.

The defendant pleaded to the first count the condition of the bond and its performance. To the second count he pleaded, first, 'that by the condition of the bond the defendant, as surety, became liable to the plaintiff, as administrator de bonis non, only for such of the assets of the estate as had not been converted into money by the said administrators or the survivor, and the defendant says that the assets of said estate consisted wholly of a claim or chose in action owing by the government of the United States, and that the money claimed in this action is the proceeds of said claim or chose in action collected from the government, and thereby converted into money,' etc. The second plea to the second count averred that the defendant, as surety as aforesaid, was liable only for such assets of said estate as had not been administered by said administrators or the survivor, and that the money claimed in this action is for assets which had been administered before the removal of said surviving administrator from office, and the appointment of plaintiff. Both these pleas also aver that defendant was not a party to the proceeding in which the order to pay over was made and was served with process therein, nor did he voluntarily appear.

In his replication to the first plea (the plea of condition performed) the plaintiff set out three breaches, each of them consisting in the failure of the administratrix to pay over the money to her successor in compliance with an order of the court. The plaintiff demurred to the remaining pleas. The defendant demurred to the replication to the first plea. Issue was joined on both demurrers, and the court, in general term, overruled the plaintiff's demurrer, sustained that filed by the defendant, and entered judgment for the defendant. The plaintiff thereupon sued out this writ of error.

A. S. Worthington, for plaintiff in error.

W. D. Davidge, for defendant in error.

WOODS, J.