#### T. LOWERY and others, Adm'rs v. WILLIAM PERRY.

Refunding by Disbribuiees — Pleading~~Jurisd,idion—Practice;

Administrators declared against distributees upon a written contract without seal, conditioned for the refunding of their estimated shares in the estate, if the same he necessary for the purposes of adminis*132tration, ancl allege a deficit in tlie estate Tty reason of the faet that they were obliged to take back certain property of the estate for which the purchasers had refnsed to paj'; Held upon demurrer,.

(1) That the foregoing constituted’ such special circumstances, and manifested such diligence upon the part of the administrators, as Justified them in calling upon the distributees to refund.

(2) That the benefit conferred by the receipt of the money was a sufficient consideration for the promise to refund.

(3) That it was not requisite that the complaint should set forth an “account of the administration.”"

(4) That the sum demanded not being in excess of two hundred dollars, the justice’s court had jurisdiction.

(5) That it was immaterial as to whether the return of the property by the purchaser to the administrator was before or after the execution of the paper writing by the distributees,

(6) That as the instrument sued on was a simple eontraet.it was proper that the plaintiff should have demanded judgment for the exact amount of his claim, and no more.

Held further, That, the action being on a contract made prior to the adoption of the code, and the plaintiffs declaring in assumpsit and asking damages, there could only be an interlocutory judgment and a writ of inquiry to ascertain the damages.

(Bumpassv. Chambers, 77 IT. C., 357; State exrel, Sfa,, v. McAleer, 6 Ired., 032, cited and approved.)

Civil Action, tried on appeal at "Spring Term, 1881, of Wake Superior Court, before Schenck, J.

This action commenced in a justice’s court, the defendant being summoned to answer thp plaintiff’s complaint “ for the non-payment of the sum of $68.50 due by account.” Before the justice the pleadings were oral — the complaint being for the non-payment of “ $68.50 overpaid to defendant as a distributee in the estate of their intestate, William Geoplin, as evidenced by- a refunding bond.” The defendant at first demurred, but upon his demurrer being overruled, answered, denying the debt, setting up a counterclaim, and pleading the statute of limitations. After judgment against him in the justice’s court, the defendant *133■appealed to -the superior court, and when the ease was called for trial moved to dismiss t'he action for want of jurisdiction in the justice’s court, but his motion was overruled. By leave of the-court the parties then filed written pleadings.

In their complaint the plaintiffs alleged that after paying ■all the debts of their intestate, they paid to the defendant, as one of his next-of kin, in 1867, the sum of $150, the defendant then “ executing to plaintiffs a paper writing by ■which he bound himself to refund the said sum to plaintiffs, ¡provided the same was called for by them as administrators.” 'That by reason -of their having certain property belonging "to the estate, which they had sold, returned to them on ac- • count of the refusal of the purchasers to pay for the same, a loss had been sustained ; so that, when their aec-ount was taken before the judge of probate, it turned out the}7, -had overpaid the defendant the sum of $68.59, which sum .-he refused to pay, though demanded of him.

The defendant demurred, assigning as eause:

1. That the complaint does not set forth a cause of aetion, rin that, it does not show special circumstances which would authorize the plaintiffs to .recover.

2. It does not set forth the account of the .administration •of the-.estate.

3. It does not set forth what the paper writing is— whether ;& bond or note, or the date of it.

4. The court had no jurisdiction of the aetion.

5. It, does not show whether the property alleged to have been .returned, was so returned before or after -the execution of the paper writing, or the value of the same.

6. 'It demands judgment for $68.59, and not the amount of the bond.

The court overruled the demurrer and the defendant appealed.

Mr. D. G. -Fowle, for plaintiff.

Mr. I. H. Flemming, for defendants.

*134Ruffin, J.

We think His Hod op-did' sight in overruling-the demurrer.

1. An administrator who- voluntarily distributes- the estate amongst the next of kin ©f his intestate, can not require* them to refund unless he- alleges and proves-th-e existence of some special circumstances, such as aequit him o-f all blame and imputation of negligence, and may enable a court of equity to see tha-t it is- not consistent with the dictates of & good conscience that the loss should fall ©n him-.. He is required to be faithful, diligent and discreet.. Bu-t that he-should demand, when» about to make-distribution, refunding bonds from those into whose- hands the estate- is- to pass*, seems, according to all authorities, to- be accepted as the-highest evidence of good faith, diligence and discretion.. The very- case,, cited for the defendant, of Bumpass v. Chambers, 77 N. C., 357, after laying down the general rule as-above stated, speaks of the fact of his-taking such a bond as ©ne o-f the special circumstances- which will entitle- him- to relief. And so it is---ffii.th the case ©f State ex rel. v. McAleer, 5 Ired., 632, also cited for the defendant.

It is true that in the case last referred to, it was decided by this court that the refunding bondsw-hi-ch executors and administrators- are authorised by the statute to- take- in the-mame of the-state, inure-solely toth-e benefit of the-creditors, and cannot be sued upon in the name of the-personal representative. But the fact that the- law is so- held, is t-he- very reason given- by J-u-dge Daniel, who- delivered- the- opinion» in that case, why the executor, should have taken as well a-bond payable to himself as-an indemnity against loss. As the instrument in which this-defendant promised to refund, was executed to the plaintiff individually, and as the demurrer admits that- upon taking the account of the estate it-was ascertained he had been paid too- much, the plaintiff' must be entitled to recover, unless there be something to. prevent in the other causes- assigned.. The defendant- says *135that the plaintiff should have set forth in the complaint the consideration upon which his promise to refund was based. Has he not -done so in the statement that having in his hands after the payment of all debts of his intestate the sum of '$150 due the defendant as a distributee, he paid the same to him upon his giving him the paper writing sued on? This surely was a benefit conferred, and must constitute a sufficient consideration.

2. It was not proper that the complaint should set forth the “ account of the administration.” It states the fad that the result of taking the account was to show that defendant had been advanced the sum of $68.59, more than his full share of the estate, and that was all on that point it should have stated. It is never proper that pleadings should be encumbered with the statement of .legal conclusions, or of the evidence to be offered in support of the party’s claim.

3. It is not stated in the complaint that the paper writing was under seal, and the presumption therefore is that it was not.

4. Inasmuch as the action is founded on contract and the sum demanded does not exceed two hundred dollars, the justice’s court not only had jurisdiction of it, but was the only court known to our law that did have it.

5. The complaint seems to admit of but one construction, and that is, that the property alleged to have been returned, was in fact returned after the execution of the paper writing, but whether before or after is perfectly immaterial.

6. As the instrument sued on "was a simple contract, it was proper that the plaintiff should have demanded judgment for the exact amount of his claim, and no more.

As the action is founded on a contract made prior to the adoption of the Code of Civil Procedure, it is governed by the law existing prior thereto, and upon the overruling of the demurrer the plaintiff is entitled to his judgment. But as he declares in assumpsit and seeks to recover damages, *136the judgment can only be'interlocutory, and the amount of his damages must be ascertained by a jury.

Judgment of the court below affirmed and the demurrer overruled. Judgment for plaintiff, and the cause remanded that there may be an inquiry to ascertain plaintiff's damages.

No error. Affirmed.