
    William Rice, Ordinary v. A. W. Thomson.
    in an action upon an administration bond, the plaintiff may declare for the penalty, without setting out the condition: and after a verdict in his favour upon the issue of non est factum, he may immediately submit the condition of the bond to the same jury, to assess his damages, conformably to the act of assembly, vide 1 Faust, 213.
    If the defendant go to trial upon the plea of non est factum alone, it is a waiver of any legal defence to the action, of which he might have availed himself under the condition of the bond.
    An administrator.cannot set up, as a discount to an action on his administration bond, an unadjudicated claim for extra compensation, beyond the commissions allowed by law. vide P. L. 202.
    Tried before Mr. Justice Earle, at Union, Spring Term, 1831.
    Debt on an administration bond. The condition was not set out in the declaration, and the only breach assigned, was the non-payment of the penalty. Plea, non est factum. The execution of the bond was proved; and the plaintiff offered in evidence a decree by the ordinary, against the defendant, as administrator. To this the defendant objected, that the condition of the bond not being set out in the declaration, the question of performance of the condition was not in issue, and the evidence was therefore irrelevant. The objection was overruled, and the ordinary’s decree admitted. The plaintiff having closed, the defendant moved for a nonsuit, on the ground, that the Court had no jurisdiction of an administration bond, unless it appeared by the pleadings, that the accounts of the administrator had been made up by the ordinary, and a decree made upon them. This motion was refused. The presiding Judge also refused to admit evidence of a claim, set up by way of discount, for extra services rendered to the estate by the defendant, as administrator. The defendant then offered to prove, that at the commencement of the present action, there was an appeal pending from the decree of the ordinary; but this testimony his Honor held to be inadmissible in the state of the pleadings.
    The jury found for the plaintiff on the plea of non est factum; and a second verdict was rendered at the same time, assessing his damages for non-performance of the condition of the bond, at the amount of the ordinary’s decree.
    
      The defendant gave notice of appeal; and now moved in arregt judgment, for a nonsuit, or for a new trial.
    In arrest of judgment, on the ground, that the action being on an administration bond, the condition should have been set out in the declaration, and a specific breach assigned.
    For a nonsuit, on the ground, that the only breach assigned in the declaration, to wit, the nonpayment of the penalty, did not give the court jurisdiction of the suit.
    For a new trial, on the grounds — 1. That the discount offered by defendant was improperly rejected. 2. That the court erred in permitting the plaintiff to submit the condition of the bond to the jury, when it had not been put in issue by the pleadings; and to take a verdict for damages, which was a surprise upon the defendant. 3. That the defendant was intitled to the benefit of the pendency of an appeal from the decree of the ordinary, at the commencement of this action, and could not be deprived of it by the plaintiff’s omitting to put the condition of the bond in issue by the pleadings.
    Williams, for the motion.
    Herndon, contra.
    
   O’Neall, J.

delivered the opinion of the Court.

In an action on the bond of an administrator, the uniform practice has been to declare on the penalty, and leave the assignment of breaches of the condition to the replication, if the defendant should think proper to rely on the performance of the condition as a defence. This would be a sufficient answer to the ground in arrest of judgment; for as to matters of pleading, an uniform and well settled practice is conclusive.

But I think the practice is well sustained by principle. The penalty is the debt demanded, the condition is the discharge of it; and any defence arising out of it must be pleaded. In England, neither the bond nor the condition constitute a part of the record, until set out on oyer in the plea. In this State, by a rule, of Court, a copy of the bond, including the condition, is required to be filed with the declaration; but it does not thereby become a part of the record for the purposes of pleading. It is merely notice to the defendant of the cause of action, and to it, the proof in the cause is confined. It will not cure a defective description of the bond in the declaration. A variance between it and the description of the bond in the declaration, can be taken advantage of by demurrer only, after having craved oyer, and set it out in hmc verba. It is therefore unnecessary to notice the condition in the declaration.

On the ground taken for a nonsuit, it has been contended, that as the court of law has no jurisdiction of the accounts of administrators, therefore it would have no jurisdiction of a suit on the penalty of an administrator’s bond, unless it was averred in the declaration, that the administrator had accounted, and a sum certain found to be in his hands, by the judgment of some competent tribunal. This position is supposed to be sustained by the case of Anderson v. Maddox, 3 M‘C. 237. But this supposition is clearly incorrect. The able and learned Judge, who delivered that opinion, never supposed that such an inference could be drawn from it. His whole argument goes to show, that until an account had taken place, and a sum certain was ascertained to be in the hands of the guardian, by the judgment of a court of competent jurisdiction, the plaintiff could not recover. It is true that he says, a court of law has no jurisdiction of the accounts of the guardian or an administrator; and that it is incompetent to investigate them. But this was a want of jurisdiction to hear and determine upon the effect of the evidence, by which it was proposed to sustain the case, and not of the case itself. It appeared from the pleadings then presented to the Court, that no account had been required, and that none had taken place. The condition of the bond was therefore not broken, and the defendant’s plea in discharge intitled him to judgment. If the defendant chose to take issue on the factum of the bond, and go to trial on that plea, it was a waiver of any legal defence of which he could otherwise have availed himself under the condition.

On the grounds taken for a new trial, it is unnecessary to add any thing to the views taken of them by the presiding Judge.

The motions in arrest of judgment, for a nonsuit, or new trial are refused.

Motion refused.  