
    *George Rumbarger v. Frederick Stiver.
    
      Scire facias against an executor to charge him personally, recites receipt by him of three thousand dollars, for which he had not accounted. Plea that defendant had fully administered, that he had no assets in his hand when sci. fa. was sued, and that he did not receive three thousand dollars as alleged in sci. fa. The plea adjudged bad on special demurrer, both as insufficient and for duplicity.
    This cause was reserved for decision here in the county of Montgomery.
    The scire facias issued in this case recites, that the plaintiff recovered a judgment in the Supreme Court for the county of Montgomery, at the June term, 1826, against the defendant, as surviving executor of Caspar Stiver, sen., deceased, for seven hundred and twenty-two dollars damages, and one hundred and two dollars and .seventy-wo cents costs of suit; that an execution was issued, which was returned “ no goods nor chattels, lands or tenements found, whereon to levy.”
    The scire facias next recites, that three thousand dollars came to the hands of the defendant, as executor of the said Caspar, deceased, which was more than sufficient to pay the plaintiffs judgment; that more than five years had elapsed, and the defendant had not settled the estate, but had wasted the assets, which came to his hands, as executor; and that the plaintiff’s judgment is unpaid and unsatisfied.
    The scire facias then prays for execution, de bonis propriis, of the defendant. The court of common pleas render a judgment by default, for execution, against the defendant, de bonis propriis; from which judgment the defendant appealed.
    The defendant, by consent, since the appeal, has filed a special plea, and, as a defense to the scire facias insists in his plea: 1. That he has fully administered. 2. That he had not any assets in his hands when the scire facias was sued out. 3. That the three thousand dollars mentioned in said sci. fa. never came to his hands, as executor, and that he had not wasted the estate of the testator.
    To this special plea, the plaintiff demurred specially, and the defendant joined in demurrer. The plaintiff assigned several causes of demurrer, two of which only were considered by the court: 1. That the defendant had not denied but what he received assets to a less amount than three thousand dollars, and sufficient to pay the said judgment. 2. That the plea was bad for duplicity.
    
    H. Stoddard, for plaintiff.
    * Crane and Sohenok, for defendant.
   Judge Wood

delivered the opinion of the court:

To make a good plea, it must be: 1. Direct and positive, and not argumentative. 2. It must be single, and contain but one matter, because duplicity begets contusion. 3. It must have convenient certainty of time, place, and persons. 4. It must be so pleaded as to be capable of trial. 5. It must answer the plaintiff’s allegations in every material point. 3 Bl. Com. 308.

Try this plea by these rules. The defendant denies that three thousand dollars came to his hands, as assets, but does uot deny that a less sum, and sufficient to pay the plaintiff's judgment, came to his hands. The plea, then, has not that certainty which the law requires. It does not answer the plaintiff’s allegations in every material point. It is not a sufficient answer for the defendant to say, I did not receive three thousand dollars, but he must aver that no part of that sum came to his hands; for he is as much liable under this sci. fa. for any amount which came to his hands, as for the gross sum stated.

It is a rule of the common law, that the plea should not be double. It is a rule, says Chitty, founded on principle. It would be vexatious and unnecessary to put the opposite party to litigate and prove two points, where one would be sufficient to establish the matter in issue; and although the statute permits several pleas, there is no authority for putting several distinct matters in the same plea.

This plea avers: 1. That the defendant has fully administered; 2. That he did not receive the three thousand dollars; and, 3. That he has not wasted the estate. As set forth and embodied in this plea, they are distinct substantive allegations, and the plea is, consequently, bad for duplicity. The demurrer is sustained.  