
    * Thomas Dawes, Judge, &c. versus Abiel Winship and Others.
    To a plea of omnia performavit, pleaded to an administration bond, the plaintiff replies, that the administrator did not account for certain property valued in the inventory at 2000 dollars : the defendants rejoin, that the administrator did account therefor, charging himself with 878 dollars, the proceeds thereof, and tender an issue to the country ; the plaintiff does not join the issue, but in his surrejoinder alleges that the property was taken and sold on an execution against the administrator; that he ought to have sold it for its full value, and not have suffered it to be taken and sold on execution; and so that he has not accounted for the full value thereof, as he ought, &c. The surrejoinder was held bad.
    Debt on a bond given to the plaintiff, judge of probate for this county, by the said Winship, as principal, and the other defendants as his sureties, conditioned for the faithful administration of the estate of Edward Tyler, deceased, of whose last will the said Win-ship was appointed executor.
    After oyer had of the bond and its condition, which were in usual form, the defendants plead that Winship- omnia performavit.
    
    The plaintiff, in his replication, assigns the following breach, i'iz. That the testator, at the time of his decease, was the proprietor of seventy shares in the stock of a certain incorporated insurance company, cá Jed the North American Insurance Company; that the said shares were included in the inventory of the testator’s estate, and were therein valued at 7000 dollars; that the said Winship did not account for twenty of the said shares, which were of the value of 2000 dollars, but hath wholly neglected and refused so to do.
    The defendants rejoin that, at a. probate court held at, &c., before the plaintiff in his said capacity, on, &c., he, the said Winship, as executor, &c., did account for the said twenty shares, charging himself with the whole proceeds thereof, amounting to the sum of 878 dollars, in his account of the administration of the said estate, then and there exhibited to the said judge for allowance; and which the said judge did then and there allow and approve ; and of this they put themselves on the country.
    The plaintiff does not join the issue thus tendered; but in a surrejoinder alleges that one Hannah L. Tyler, on, &c., recovered a judgment against the said Winship, as *ex- [ * 292 ] ecutor, &c.; that a writ of execution issued thereon ivas delivered to a deputy sheriff, to be by him served; of which Win-ship had notice, and ought to have satisfied the execution out of the estate of his testator; that afterwards, the execution not being satisfied, the officer levied the same upon the said twenty shares; which were sold for the sum of 878 dollars. The plaintiff then avers that Winship ought to have sold the said twenty shares at the full value thereof, as he sold the other fifty shares; and ought to have accounted for their value, and not have permitted them to be so taken and sold on execution. And so the plaintiff says that the said Win-ship has not accounted for the said twenty shares, at their reasonable and fair value, as by law he ought to have done. And this, &c. Wherefore, &c.
    To this surrejoinder the defendants demur specially, and assign tor causes of demurrer—1. That they having tendered a sufficient and material issue, upon the fact of the said Winship's accounting with the said judge of probate for the said twenty shares, nevertheless the plaintiff did not join the issue so tendered. 2. Tha,t the plaintiff hath not, in his surrejoinder, confessed that Winship did account with the judge of probate for the said twenty shares, as is in the rejoinder alleged; nor has he avoided the legal consequences of that allegation; but has, in his surrejoinder, alleged matters wholly foreign thereto. 3. That the plaintiff, in his sumnomder, hath departed from the allegation in his replication, that the said Winship did not account for the said twenty shares; and has nroceeded to allege, as a cause of complaint, that the said Winsfav nermitted a deputy sheriff to sell said twenty shares upon an execution duly issued upon a judgment against the said Tyler's executor 4. That the said surrejoinder is double in this, in averring that the said Winship ought to have sold the said twenty shares at the full value [ * 293 ] thereof; and in averring also that he ought not to *have permitted the said shares to have been taken on execution and sold, as in said surrejoinder is alleged.
    The plaintiff joins in demurrer.
    
      W. Sullivan, for the plaintiff.
    
      Aylwin, for the defendants.
   Parker, C. J.

[After stating the pleadings.] We are satisfied that the surrejoinder is bad. There being a regular issue tendered, on a fact material, and conclusive if true, the plaintiff could not avoid that issue, and plead over other facts by way of answer. The issue was regularly tendered by the defendants; because the plaintiff had set forth, as a breach of the condition of the bond, that the defendant had not accounted for the twenty shares. The defendants do not, in their rejoinder, allege any new facts in excuse of the breach, so as to oblige them to conclude with a verification; but contradict the plaintiff’s averment, by averring an account; and there being thus a direct affirmative and negative, it was proper to conclude to the country.

This issue should have been joined; or, if the plaintiff intended to rely upon fraud in the settlement of that account, he should have amended his replication, and averred the fraud. So, if he meant to rely upon proof of negligence or mismanagement, amounting to fraud, he should have alleged that, as the breach of the condition of the bond.

The surrejoinder is bad also, as it is a departure from the replication ; because it does not insist upon the breach therein set forth, but upon another and different one. If the allegations in the surrejpindcr are true, they ought to have been made in the replication.

Surrejoinder adjudged bad.  