
    CONSTITUTIONAL COURT,
    COLUMBIA,
    NOV. 1802.
    Ordinary v. Bracey, and Naudin.
    To debt On an administration bond, defendants pleaded perfoi‘inancet generally ; and to a replication assigning a breach, to wit, that the administrator had not returned an inventory before action brought, they rejoined, that leave had been granted by the ordinary, to return the inventory at any time before a certain day, which was subsequent to the commencement of the action. Held, that the rejoinder was bad for departure, as it alleged an excuse for non-performance, and therefore did not support the plea.
    On demurrer to a surrejoinder, the rejoinder being defective, judgment goes for plaintiff. Judgment on demurrer is always against the party who has committed the first fault in pleadingv
    This was an action of debt on a bond, brought in the name of the judge of the court of ordinary, for the district of Kershaw, against the defendants, viz.: the defendant Bracey, as administrator of Gr. A., deceased, and the defendant, Naudin, as his surety. The defendants craved oyer of the bond and condition, and set out the condition, to wit: to make a true perfect inventory, &c., when thereunto required ,• and well and truly to administer, &c.; and pleaded performance generally. The replication, protesting that the defendants had not well and truly performed the condition, &c., alleged, that the defendant, Bracey, before the issuing out of the writ in this case, viz., on the 25th of January, 1800, made an, inventory of certain goods, and chattels, of the es. tate of the deceased, which he exhibited ih the court of ordinary* Kel’shs.w district, as and for a true and perfect inventory of all an<^ singular the goods, and chattels,- arid credits, of the said de» ceased, &c. ; which inventory was not tnie and perfect: and that before the commencement of this action the defendant, Bracey,not make a true and porfoct inventory, &c., although required, &c. The defendants filed a rejoinder, stating that the said Bracey did'make a true and perfect inventory, See., and did exhibit tliesame, &c., on the 8th day of March, 1806, (which was after the commencement of this action, the tvrit having been issued, and served, on the 17th February, Í800.) The rejoinder, tlien goes on, protesting, that said Bracey never was required to make and ex»' hibit an inventory at any time before the said 8th of March,' 1800, and avers, that the said J. A. exercising the functions of judge of ordinary of said district, did give and allow said Bracey until the said 8th of March, 1800, to make and return such inventory ; but not specifying any time when the said ordinary gave such indulgence: and the rejoinder, then protésts, that the said Bracey was not bound to make and return an inventory' sooner. To this rejoinder there was a surrejoinder-, containing, in brief, the substance of the replication, without answering any of the extraneous matter of the rejoinder, or taking any notice of tlie facts and allegations advanced by way of protestation and averment therein. To this surrejoinder the defendants demurred, and-shewed for cause -of demurrer, that the surrejoinder does not an» swer the new matter set foith and alleged in the rejoinder, &e. &c-The demurrer was decided by W a ties, J., in Kershaw district, in favor of the defendants, on the ground, that the plaintiff’s surrejoinder was insufficient, inasmuch as he might have joined issue' upon some point alleged in the rejoinder; and even admitting that the rejoinder was faulty and insufficient, yet that the plaintiff ought to have demurred.
    A motion was now submitted to this cc-urt to reverse the judgment given in the district court; and was argued on the part of the plaintiff as follows : The rejoinder admits that Bracey was re-quired to make a true and perfect inventory, because it is stated in the replication, that he was so required, and it is not denied in the rejoinder. It must, therefore, be taken as a matter agreed by the pleadings ; for whatever is materially alleged by one party, and not traversed, or denied, or confessed, and avoided, by the other, in the pleadings, must be taken as agreed. 1 fdtr. 297. Add the demurrer admits every matter, well pleaded, to be true, which appears to be agreed by the pleadings. It is indeed protested by the defendants in their rejoinder, that Bracey was never required to render an inventory before the 8th March, 1800 : but this amounts to a positive denial of what is alleged in the replication ; and, therefore, the defendants, if they intended to put this fact in issue, ought to have taken issue upon it,1 and not proceeded to state other new matter in no way material to the point. The protestation of this fact cannot amount to a tender of issue, and none could have béeii taken upon it. Besides, the rejoinder concludes with an averment; whereas if it was intended as a tender of issue, and was issuable, the conclusion should have been to the country: and there was no need to give the plaintiff an opportunity to answer over, for it was not necessary to state new matter. But the de« fendants were estopped to plead that Bracey was not required to return a true inventory before the 8th March, 1800 ; since it is set forth and alleged in the replication, and not denied in the rejoin, der, that Bracey . made and returned an inventory on the 25th Ja=" nuary, 1800, which was. not true and perfect! and whatever is materially alleged," and'not traversed, is admitted.' 1 Str. 297". It must therefore be taken as true,'that an inventory was then re. turned, and that it was returned in consequence of a requisition to that effect by the ordinary : but even if this should not be presumed, although it seems to' be a‘ natural and proper presumption, yet by the law of the land it is required of every executor and" administrator to make and return an inventory. By the A. A. 1745, they are required to do so within ninety days,'P. L. 202; and Bracey having made an inventory, as by law required,.it was as incumbent upon him to have made a true one, as if he ljad been' specially required to return it by the ordinary.' And although it may be considered- a merely voluntary act on his part,' and that he was in no wise compelled to make and return the inventory at the time lie'did yet having- made and returned it, it must stand on the same footing as if it had been made and returned in pursuance of an express requisition for that purpose by the ordinary: and he' shall not be allowed to'excuse himself for making and returning a false inventory, by- alleging that he was never required'to make and return an inventory. Moreover, an issue coul'd not be pro. perly tendered on the fact alleged in the rejoinder,-namely, that* Bracey never was required to exhibit an inventory ; without traversing, or confessing and avoiding, the other fact stated in the re. plication, that is to say, that Bracey had, before the commence, ment of the suit, made and exhibited a false inventory, This al,. legation should have been answered, or demurred to. By re. joining, and not denying this fact,- it is admitted. It must, therefore, be taken as true ; and its relevancy in point of law is now the only question before the court. The protestations of the defondants in their rejoinder are anomalous, and irrelevant, and ought to be rejected as superfluous and impertinent. No issue can be joined upon any facts advanced in this manner : and to any other purpose they are unnecessary. For protestations are only made to the intent that the party making them may not be con-eluded by his plea or replication, if the issue be found for him, Co. Litt. 124, b j and are made to avoid any implied admission of a fact, which cannot, with propriety or safety, be positively affirmed, or denied. 3 Bl. Com. 311. If the facts stated in the rejoinder be all taken as true, they do not controvert the plaintiff’s right to recover, as stated in his replication ; and, therefore, it is not a sufficient answer to it. The time when the ordinary gave Bracey leave to exhibit an inventory, is not stated. For any things therefore, that appears to the contrary, it was after the exhibition of the false inventory, as stated to have been returned in the replication. The rejoinder tenders no issue on this point, for it neither denies the fact, nor confesses and avoids it. It contains nothing material, and was not deserving of an answer. An- issue must proceed out of two several allegations of the parties, the one affirmative, and the other negative. Co. Litt. 126. Here the allegations on both sides are affirmative, and do not oppose each other in contradictory assertions. The parties, therefore, could not be said to be at issue. To be sure, it is, by way of protestation, obliquely denied that Bracey was required to return an inventory. But no issue could be taken upon this point in this way. This fact was either material, or not material. If material,, it should have been positively, and substantially denied, and issue tendered thereon,, If it was not material, it is still- so, and. cannot affect the validity of the replication. But it is not stated at what time the ordinary gave the indulgence to Bracey to make a supplementary inventory ; and, therefore, non constat, that it was not subsequent to the commencement of this action, which, in truth, was the case: and if it was subsequent to the commencement of this action, it cannot, by relation, and ex post facto operation, take away the plaintiff’s right of action, which was pre-existent to the exhibition of the inventory. Then if the date of license given by the ordinary, may be material, the rejoinder is defective in- omitting the date, and must be condemned as insufficient upon this demurrer, for the court must look back to the first fault.
    The rejoinder further protests, that Bracey was not bound to render an inventory before the 8th March, 1800. But this is no more than is contained in the preceding protestations, namely, that he was never required to return an inventory sooner. But per ad. venture, the defendants might conceive that a double protestation was equivalent to a traverse ; but if it were to be considered so, yet the conclusion of the plea is erroneous, for it concludes with an averment, whereas in all cases where issue is tendered upon a fact, the conclusion should be to the country. But the matters embraced in these protestations are various, and multifarious; whereas an issue should be to a single and certain point. Co. Litt. 126. The demurrer is, because the surrejoinder does not answer the allegations set forth in the rejoinder. But it is also clear that the rejoinder does not answer the allegations set forth in the replica, tion Then if this objection be sufficient to sustain the demurrer as it regards the surrejoinder, it must be held equally substantial to affect the rejoinder. But it has been said, that in order to have availed himself of this objection, the plaintiff should have demurred on his part to the rejoinder. • This is a mistaken notion ; and it is a clear rule of law founded in reason and convenience, that, on a demurrer, the court will look to see who has committed the first fault in pleading, and will go back to that, and give judgment on it. ,2Wils. 100. 1 Str. 299, 303. Hob. 113.
    
      E contra.
    
    It was contended, that the rejoinder was sufficient, as it goes to fortify the plea, and alleges, substantially enough, matter which the plaintiff might have taken issue upon. That the or. dinary has a power to give time to an administrator to exhibit an inventory, which was done in this case. t That admitting the rejoinder was faulty, yet the first fault is to be imputed to the plaintiff, who should have demurred. And having surrejoined, he admits the validity of the rejoinder, and the court canuot only look to the first fault, which is objected to.
   The judges delivered their opinions as follows :

Trezevant, J.'

The defendants ought to have taken issue upon the plaintiff’s replication, so as to try the point, whether Bracey was, or was not, required to make and return the inventory before this action was brought; and as he did not do so, he committed the first fault in pleading, and the court must give judgment on the first fault. Com. Dig. Pleader. M. 1. The- judgment here, must, therefore, be against the defendants.

Brevard, J.,

gave no opinion, having been concerned for th<p plaintiff as counsel while at the bar.

Waties, J.,

gave no opinion, having determined the question in the district court.

Grimke, J.

This appears to be a case where the plaintiff has put himself on the judgment of the court, there being no issue to the country, and wherein he prays the court to reverse the circuit decision, as to the propriety of the pleading: acknowledging that he had committed a fault, but insisting, that as defendants had been faulty before him, the court should have looked for the first fault; and if found in defendants, that the judgment should have .been for the plaintiff. Upon this, two questions arise.: 1. Whether the court will, on demurrer, look to the first fault, and give judg., ment accordingly. 2. Whether defendant did not commit the first fault.

As to the first point I have no doubt that on demurrer the court will look through the whole proceedings, and wherever the first fault arises, there they will lay their finger, and give judgment against such of the parties as shall have committed it. 2 Wils. 150, is to this point; and 2 Str. 302 ; and Doug. 91 ; where Braeer, J., said'it was necessary to look beyond the plea, which was clearly bad. And the reason of this course of proceeding in the court is fundamentally right; for should they, in the first instance, rectify the last fault, they must then hear another motion to set the preceding one to rights also: by which mode half a dozen questions might be made on the propriety of proceedings, only one of which might be determined at any one court. This would be the means of lengthening out an issue to an unreasonable length of time, and to the very great delay of justice. Whereas by the rule laid down above, that the court will look for the first fault, and give judgment accordingly, all the subsequent defective proceedings are at once, and by one single decision, set at naught, and dis. jnissed.

As to the second point, whether defendant did commit the first fault, it is to be observed that the general rule is, that where any one of the pleadings is bad in part, it is bad for the whole. It is so laid down as to the plea, in 1 Saund. 28. 1 Lev. 48. 2 Saund. 40. Lutw. 515. So also as to replications. 2 Saund. 50. 1 T. R. 374. But this does not apply where the objection is founded on surplusage ; 3 T. R. 374, except such surplusage is repugnant, or contrary to matter precedent. Co. Litt. 303, b. There is nothing in this plea, or replication, which the court can Jay hold of «s faulty ; wherefore it becomes necessary to consider the next step in the proceedings, which is the rejoinder. The replication protesting that defendant had not well performed the conditions, alleges, that defendant, before the issuing of the writ, had made an inventory, &c., which was exhibited to the ordinary as a true and perfect inventory.of, &c., which inventory was not true and per-feet; and that before the .issuing of tile writ the defendant did not make a true and perfect inventory, as by the act is required. In which plaintiff has made three allegations : 1. That before the issuing of the writ, defendant had made an inventory, &c. 2. That he had exhibited the same as .true and perfect. 3. That the inventory so returned, was not .true and perfect. To this, the defendant rejoins, by stating, I. That he did make a true and perfect inventory. 2. That he did exhibit the same to the ordinary on the 8th of March, 1800. 3. He protests, that he never was required .to make and exhibit an inventory at any time before the 8th of March, 1802. 4. He avers, that the ordinary did give and allow him to the 8th March, 1802, to make and return such inventory. But the rejoinder does not deny that defendant made an inventory before the issuing of the writ; nor that he had exhibited such inventory to the ordinary ; nor that such inventory so returned, was not true and perfect: whereby he has altogether avoided answering the allegations in the replication of the plaintiff. I shall not consider at present, whether it is necessary that the rejoinder should answer all the points in the replication. The subject matter which I shall here notice, and to which I shall confine myself, is, whether the rejoinder supports the plea ; for if a replication departs from the dec. laration, or a rejoinder from the plea, it is bad. Co. Litt. 303, b. The defendant, in his plea, has alleged performance generally of the condition of the bond : but by his .rejoinder, it appears that .there was no such performance until after the commencement of this suit; which is a plain and direct departure in pleading, inas. much as it does not support the plea. Departure is where a replication contains subsequent matter which does not maintain and for. tify the matter in the declaration. Co. Litt. 304. a. And so of a rejoinder, which does not maintain or fortify the matter in the plea. Com. Dig. Pleader. H. The defendant, by his plea, had put himself upon this point, that he had complied with the condition of the bond before the issuing of the writ; and then by his rejoinder alleges, that the return of the true and perfect in. ventory was after the return of the writ, which is subsequent matter that does not maintain the matter in his plea. The rejoinder, therefore, and the plea, are at variance, and the rejoinder must be deemed naught. For if the fact disclosed in the rejoinder amounted to shew that the defendant had performed the condition of his bond, then he ought to have joined issue with the plaintiff upon the issue offered by him in his replication, and given this matter in evidence. But if the fact set out in the rejoinder was only an excuse for the defendant’s not having performed the condition of his bond, which appears to be the intention of the defendant, then he has departed from the bar ; and the defendant ought not to have pleaded, that he did not perform the condition of his bond, and rejoin to this matter, but he ought to have pleaded this matter at first, and specially. White v. Clever. 2 Ld. Raym. 1449. I am, therefore, of opinion, 1. That the court will look into the whole of the proceedings on demurrer, and will give judgment against the party committing the first fault: and 2. That as the defendant committed the first fault, so the judgment of the court must be against him. The opinion delivered at the circuit court must be reversed, and judgment entered for the plaintiff.

Branding, for plaintiff. Mathis, for defendants.

Johnson, J.,

dissented, holding that the plaintiff committed the first fault in pleading.

Judgment reversed.  