Carroll v. Poster ( 1832 )

Green, J.

delivered the opinion of the court.

We cannot perceive a material difference between this case and the case of the Justices of Franklin vs Peter Willis.^(a) One of the breaches assigned is as broad as that in the case of Lama vs JETufif and Lillard, (Haywood’s Rep. ) to wit, that the defendant had not accounted and paid over to those entitled according to law. The other breaches might have been more full and definite; but if there be one which is sufficient in law, the declaration could not be reached by the demurrer, so as to defeat the plaintiff’s action. In general, it is sufficient to lay the breach in the negative terms of the covenant. It is difficult to perceive why a distributee should be bound to go beyond this rule, especially when we consider that the plaintiffknows less of the conduct of the administrator, than the administrator himself, who may reply to the breach the particular manner in which he has administered the effects in the payment of debts, rendered an account within two years, and how he has delivered and paid over to those entitled, the surplus according to law.

It is sufficient to say, the fourth breach being well assigned, should have been answered issuably. Judgment reversed and cause remanded to be proceeded in.

Judgment reversed.

(a) Ante, page 461.