Tebbets, Ad'X v. Tilton, Ad'X.

The demurrer raises the question, whether the replication is bad for duplicity. Duplicity in a plea consists in alleging two or more distinct grounds of defence, when one of them would be as effectual in law as all of them; and in subsequent pleadings, in stating two or more matters in answer to the preceding pleading, when one of them would be sufficient. Gould’s Pl. 419.

A single ground of defence is not necessarily confined to a single fact, since several connected facts may be, and very often are, necessary to constitute one single and complete answer to the action. 1 Ch. Pl. 512; Arch. Pl. 191; Fletcher v. Sprague, 2 Johns. 462; Currie v. Henry, 2 Johns. 433; Tyler v. Lord, 14 Pick. 163; Russell v. Rogers, 15 Wend. 351. And the same remark is true of the subsequent pleadings. If several facts are necessary to constitute one single and complete answer to the case made by the previous pleading, the replication or rejoinder is not double. 1 Ch. Pl. 625; 1 Arch. Pl. 271; Otis v. Blake, 6 Mass. 336; McClure v. Ewen, 3 Cow. 313. In the case of Robinson v. Rayley, 1 Burr. 316, the rule as to duplicity in a replication was laid down too broadly, that when several facts constitute the single point of defence upon which it is intended to take issue, the replication may traverse them all without being objectionable for duplicity; and this decision was followed in Strong v. Smith, 3 Cain, 160, and Tucker v. Ladd, 7 Cow. 450. But the rule now recognized is, that whatever may be the form of the plea, the replication will be double if it denies two or more facts, when the denial of either of them is a complete answer, or if it assert two or more facts, either of which, if found true, would be conclusive. Nichols v. Arnold, 8 Pick. 175. If a plea consists of several facts, all of which are necessary to make a complete defence, the defendant cannot in general traverse them all, unless it is necessary to make such general denial, in order to make a complete answer. If a denial of one or more of the facts would be a perfect answer, it will make the replication double to deny any others. Cooper v. Heermance, 3 Johns. 313; Satterlee v. Sterling, 8 Cow. 233; Tuttle v. Smith, 10 Wend. 388; Austin v. Parker, 13 Pick. 222.

The general replication, de injuria sua, &c., may perhaps constitute an exception to this rule. Tubbs v. Calwell, 8 Wend. 133.

In this case the plea is, in short, that the defendant returned a true inventory of all the estate, and presented a true account of her administration, and that the judge of probate, on settlement, allowed her the balance above the expenses of the last sickness and funeral, and the expenses of administration, and discharged her. It is in effect a special plene administravit.

The replication, in short, is, that the defendant had in her hands property belonging to the estate which she never inventoried and never accounted for. It is, in effect, that she did not fully administer the estate in the special manner alleged. Here is in substance no duplicity. Several facts go to make up the plea." The denial of some of those facts makes up the replication. There is but a single point presented by the replication, that the defendant had property not inventoried nor accounted for. It is not doubted that the facts stated in the plea are all necessary to the defence. It seems equally clear that the fact alleged in the replication, that the defendant had in her hands estate which she did not inventory, is not alone a sufficient answer to the action, since it is sufficient, if property is accidentally omitted in the inventory, to account for it upon the settlement. It was therefore necessary to allege that the property was not inventoried nor accounted for, and the replication therefore is not double.

But there is a question of a more material character raised by these pleadings. By the Revised Statutes, chap. 162, § 25, “ If the estate of any person deceased, after deducting the allowance made to the widow, shall be expended in defraying the expenses of the last sickness and funeral of the deceased, and expenses of administration, the administrator on settlement of his account shall be wholly discharged, by decree of the judge, from all claims of the creditors against such estate, without any other proceedings whatever.”

When, upon a settlement of the administrator’s account, a decree has been regularly entered and the administrator discharged, agreeably to this provision, the question may arise how far the creditors are bound and concluded by the decree of the court of probate, and how far such decree may be invalidated and impeached by an averment of facts which might, if duly presented at the hearing, to the court of probate, have led to a different decision.

At common law a court of probate is not technically a court of record, and to be valid its proceedings must be warranted by law. Any order or decree of the court, if repugnant to law, was held to be null, and might be avoided by plea. H-v. —, 4 N. H. Rep. 60; Chase v. Hathaway, 14 Mass. 227. It is by no means clear that this doctrine is properly applied to the courts of probate in this State, whose powers were chiefly derived from our own statutes, and are of a more extensive character than those of the English ecclesiastical courts.

This is a point now rendered immaterial, since by the Revised Statutes, chap. 152, § 19, “ The court of probate shall be deemed for all purposes a court of recordand its records import the same verity as those of other courts. In the case of Bryant v. Allen, 6 N. H. Rep. 116, in 1833, before the Revised Statutes, it was holden that the jurisdiction of a judge of probate is, in general, sole and exclusive, and his decisions, regularly made, of matters within his jurisdiction, are, unless an appeal is interposed, conclusive against all the world; since every person whose rights are in any manner involved in the proceedings of the judge of probate has a right to become a party to the proceedings and to be heard, and if aggrieved by the decision, to appeal.

However the proceedings of a court of probate might formerly be avoided by plea, on account of any irregularity, it must now be held, that if the court acts within its jurisdiction as to the subject matter of its decisions, as to the persons to be affected and as to the course of proceedings prescribed for it by law, its decisions are binding and conclusive upon all parties interested. They may be re-heard and reexamined upon appeal, which is the mode appointed for the correction of its errors, but they cannot be questioned or impeached collaterally in any other court or course of proceedings, unless fraud is alleged. The judgments of all courts are open to be impeached for fraud. It is not perhaps easy to imagine a case where the facts alleged in this replication exist, where fraud would not be found, but the fraud in such cases must be distinctly alleged. No such charge is made in this case.

The replication must be adjudged bad in substance, for this cause. It may be amended by charging fraud, if the facts will warrant it.