Paine v. Fox
Massachusetts Supreme Judicial Court
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.
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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 (1). [ * 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…
1Opinion of the CourtParker, 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…
2Cited by6 opinions
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- Gleason v. M'VickarNew York Supreme Court · 1827
- Potter v. TitcombSupreme Judicial Court of Maine · 1831
- Judge of Probate v. BriggsSuperior Court of New Hampshire · 1829
- People ex rel. Heidinger v. United States Fidelity & Guaranty Co.Appellate Court of Illinois · 1937
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