
    Nathaniel Paine, Judge, &c. versus Joseph Fox.
    In an action against an administrator upon his bond for faithful administration, to charge him on the ground of his having received money for which he has not accounted; it must appear that the money was received by him before the rendering of his account of administration; or if afterwards, that he has been cited to render an account by the judge of probate.
    It is a settled rule in pleading, that what comes under a videlicet is no averment
    An administrator is not bound to state the conditions of sale, in an advertisement for the sale of the lands of his intestate, under a license from Court.
    Nor is it unlawful for him to make immediate payment in money a condition of such sale.
    
      The declaration was in debt, and contained two counts. The first was on a bond, conditioned for the faithful administration of the estate of Zabdiel B. Adams, deceased, intestate. The second was on a bond required to be given by executors or administrators, licensed to make sale of the real estate of their testators or intestates, previous to such sale . [ * 130 ] * The defendant pleaded, after oyer had, 1. Non est factum to each of the bonds, on which issue was joined to the country.
    2. General performance of the conditions of both bonds; to which the plaintiff replies, that, after making the bond in the first count mentioned, and before the commencement of this action, viz. on the .30th of May, 1814, the defendant received fifty cents of one Jonas Marshall, in payment of a debt due to the estate of the deceased, which he had not accounted for to the judge of probate; although he had rendered two accounts of his administration upon oath, one on the 6th of June, 1815, and the other on the 1st of December in the same year ; which accounts had been settled, and the balances thereof ordered to be distributed amongst the creditors of the intestate, the estate being insolvent.
    To this replication the defendant demurs specially, and alleges, as one cause of demurrer, that it is not averred that the defendant had been cited, or required, by the judge of probate, to settle any account of his said administration, or to render any account of such sums as were in his hands as administrator. The demurrer is joined by the plaintiff.
    3. Performance specially of the condition of the administration bond. The plaintiff, in his replication- to this plea, sets forth a breach, in that the defendant had in his hands the sum of eighteen dollars, proceeds of the goods and effects of the intestate, which he had not accounted for. The form of the replication is the same with the preceding one, and it has the same defect in it, viz. the want of an averment that the money was in his hands before the settlement of his accounts, and the want of an averment of a citation; which the defendant shows also for "cause of demurrer to this replication, which is joined by the plaintiff.
    4. Performance specially of the condition of the bond in [*131] the second count, for the sale of the real estate. To* this plea the plaintiff replies, that the defendant conducted said sale fraudulently, with intent to injure the creditors of the intestate, in neglecting to state any conditions of sale in the advertisements for the sale •—and in stating, at the time of the sale, as a condition thereof, that payment must be made immediately, in specie or in Boston bank notes. The defendant, in his rejoinder, states that, in his advertisements, he gave information where the conditions of sale might be known ; and traverses the neglect charged in the replication. To this plea there is a surrejoinder, which concludes with tendering an issue to the country on the sufficiency of the advertisements ; and to this the defendant demurs specially, alleging that the issue tendered is wholly immaterial, the defendant not being bound by law to state any conditions of sale in the advertisements; and the plaintiff joins in demurrer.
    The replication to the second plea of the defendant to the second count resulted in an issue to the country.
    Willard, for the plaintiff.
    It is objected to the replications to the second and third pleas, that there is no sufficient and substantive averment, that the money unaccounted for was received by the administrator before the settlement of his accounts; because the day mentioned is laid under a videlicet. But the doctrine is well established by the most respectable modern authorities, that where any matter alleged is material and traversable, the stating of it under a videlicet will be considered as a sufficient positive averment .
    As to the want of an allegation that the defendant had been cited, &c., we say, that when a person is bound to do a thing upon request, and he undertakes to do it suá sponte, waiving the request, he is bound to the same strictness and fidelity in the performance, as if the request" had been formally made. The defendant might have been cited by the judge to settle his account; yet he having voluntarily undertaken to make such settlement upon oath, the necessity of a citation was superseded.
    *The defendant relies on the immateriality of the [*132] plaintiff’s surrejoinder under the plea of performance specially of the condition of the bond in the second count. But we contend that the defendant, having in his rejoinder traversed a single allegation in the plaintiff’s replication, and the plaintiff having surrejoined, fortifying his replication, and tendering an issue upon the traverse, and the defendant having demurred to the surrejoinder, the pleadings, as to their legal effect, are precisely the same as they would have been, had the defendant demurred to the replication. The demurrer then admits the averments in the replication to be true. Those averments disclose most clearly a breach of the condition of the bond, which requires that the defendant, “ in all things relating to the sale, should govern himself by the laws of the commonwealth, so that the interest of the creditors of the estate should be best secured.”
    
      Lincoln and Shepley, for the defendant.
    
      
      
        Stat. 1783, c. 32.
    
    
      
       1 Chitty on Pleading, 307, 308 586. —1 Saund. 170, n. 2. —2 Saund. 291, a.—1 Strange, 233
    
   Parker, C. J.

Perhaps it would not be material to allege that the defendant had been cited, if by distinct averment it appeared that the sum alleged to be received was in fact received before the accounts were settled; although even in that case, as small sums may be omitted by an administrator from his account through mere mistake, it would certainly be proper to give him opportunity to rectify his mistake, before a suit should be instituted on his bond. If the omission were alleged to be fraudulent, it might be otherwise.

But the replication is defective, in not stating when the money was received ; so that it could be seen to have been before the rendering of either account. Now it would be palpably wrong to subject an administrator and his sureties to a vexatious suit, for the receipt of money after an account had been settled, without calling him before the Probate Court, where he might perhaps discharge himself by exhibiting further expenses, and thus show that a suit w'as unnecessary.

[*133] * It is true that under a videlicet, the plaintiff has stated a time for the receipt of the sums, which is prior to the settlement of either account. But it is a settled rule in pleading, that what comes under a videlicet is no averment. It is certain that, in this form of pleading, the defendant could not have traversed the time, although essential to the merits of his defence . He cannot therefore be bound by it. Rejecting then the days mentioned in the replication, the only averment left is that, after making the bond, and before the commencement of the action, the defendant had received fifty cents, which he had not accounted for. This may be true, and yet no breach of his bond. For if it were received after the settlement oi his accounts, he is not answerable for not accounting, until cited before the Probate Court.

The replication to the third plea is similar in form to that we have considered, and has the same defects, viz. the want of an averment that the,money was in the defendant’s hands before the settlement of his accounts, and the want of an averment of a citation.

With respect to the pleadings under the second count in the plaintiff’s declaration, the rejoinder and surrejoinder would be both bad upon special demurrer, for departure. The question that has been argued relates to the sufficiency of the replication. Had the plaintiff averred distinctly any fraudulent management in the sale of the land, his replication would have been good. But although he has alleged a fraudulent intent, yet in specifying wherein the fraud consisted, he has adduced facts, which are not in themselves unlawful or fraudulent.

The defendant was not required by law to state the conditions of sale in his advertisement; nor was it unlawful for him to exact payment immediately, in such bank notes as were in best credit. Having stated these facts as the instances of fraud in the sale, it is the same as if he had not denominated them fraudulent. It is analogous to cases of slander, for charging one with stealing * certain things, which are not the subject of larceny. [ * 134 ] Had an issue been taken on the facts averred to be fraudulent, it would have been immaterial. Those facts might, with others, have been proper in evidence, upon the trial of an issue whether the defendant had conducted himself fraudulently or nót; but there is no charge leading to such an issue in the replication, and for this cause the replication is bad.

All the issues in law are thus decided against the plaintiff. 
      
       [The authorities cited by the counsel for the plaintiff show the law to be other wist). —1 Chitty, 644, 349—351. 5th Land,, ed. —Ed.]
     