the plaintiff, executrix, as aforesaid:" held, on special demurrer, that the declaration was vitiated by this misjoinder of different considerations in different rights, but that if they had all appeared to have been in the same right, it would be sufficient if any one consideration were properly averred, as the remaining considerations might be rejected a. After the conclusion to the damage, &c., a profert of the let- Profert. ters testamentary should be made b; and it should appear that the letters were granted by proper authority. Where in a declaration by an administratrix, the plaintiff made profert of letters of administration, "duly granted by the Consistory Court of St. Asaph," without making the usual statement of the grant of the letters of administration in the body of the declaration; held bad on special demurrer, as not shewing that the letters of administration were granted by the proper authorities: held, also, that the omission of the date of the grant was immaterial. The omission of the profert is, however, aided by 4 Anne, c. 16, unless specially demurred to ". counts or causes of action may be joined. The plaintiff cannot join in the same declaration a demand as What executor or administrator, with a claim in his own right; in case of a misjoinder, the declaration will be bad on a general demurrer; or in arrest of judgment; or in error. But whenever the money recovered on each count will be assets, the counts may be joined in the same declaration. Therefore the same declaration which contains counts on promises to the testator may contain a count on an account stated with the plaintiff as executor, concerning money due to the testator from the defendant, or concerning money due to the plaintiff as executor E. So, counts on promises made to a testator or intestate may be joined with counts on a promisory note given to the plaintiff as administrator or executor h, or to a count for money What counts cannot be joined. lent by the plaintiff as executor, or to a count for money had and received by the defendant to the use of the plaintiff as executor, or a count for materials found and work and labour done by the plaintiff as executor. So a count for work done by the plaintiff as administrator may be joined with counts for goods sold by the intestate on promises to him; for the work may have been done in completing a contract of the intestate's for the benefit of the estated. So, in a declaration in debt, a count on a judgment recovered by the plaintiff as executor, may be joined with counts on debts which accrued to the testator e. But an executor cannot join in the same declaration a count for a demand which accrued to him in his own right, with a count on a cause of action which is laid to have been vested in him as executor or administrator. He cannot join a count upon a bond given to his testator with a count upon a bond given to him as executor; for the executor by taking the bond would extinguish the original debt, and it would not, when recovered, be assets; on such a bond he must declare in his own name . In every count stating a debt or promise to the plaintiff in his representative capacity, it must be averred that it accrued to him "as executor," or "as administrator;" it is not enough to say, that it accrued to him "executor." h But where a count stating that the defendant had accounted with the plaintiffs "executors as aforesaid," was joined with counts stating promises to the testator; after verdict and judgment for the plaintiffs, a writ of error was brought upon the ground of mis joinder, and the House of Lords affirmed the judgment with costs a. ne unques executor. 4.-The pleadings.] The defendant, besides the ordinary defences, may deny the plaintiff's representative character by pleading ne unques executor or administrator; but since the rules of H. 4 W. IV. the plaintiff's title as executor or administrator must be taken as admitted unless specially denied, it cannot be disputed under the general issue. Under the plea of Plea of ne unques executor, the defendant may shew that the probate is void, as that the stamp is insufficient, or the seal forged; but he cannot take advantage of such defect under the general issue b. Where letters of administration have been obtained in an inferior diocese, the defendant may plead in bar, that there were bona notabilia, and may give that fact in evidence under the plea of ne unques executor c; for we have seen in such case, the ordinary has no jurisdiction to grant probate, and the grant is therefore void 4. If the defence be that the letters of administration were unfounded, on the ground that the defendant did not reside within the diocese of the bishop who granted administration, but in a different province, at the time of the death of the intestate, that fact should be specially pleaded; it cannot be given in evidence under the plea, "that the plaintiff was not, nor is administrator," &c. e the title of executor or 5.-Evidence.] When the representative character of the Proof of plaintiff is denied by plea, he must prove his title as executor or administrator. The title of an executor is established by adminisproof of the death of the testator and by the production of the probate. The seal of the ecclesiastical court on the probate proves itself. If the probate be lost, the ecclesiastical court trator. * Lancefield v. Allen, 1 Bligh. N. S. 592. Where the affidavit of debt and writ stated the debt to be due to the plaintiffs "executors of," and not "as executors of," and the declaration stated it to be due to them in their own right; held no vari. ance. 1 Dow. 97. b Thynne v. Protheroe, 2 M. & 1 Saund. 274. n. 3. d Ante, 969. e Stokes v. Bate, 5 B. & C. 491. f 2 Stark. Ev. 316. Kempton v. Cross, Cas. temp. Hardwicke, 108. will grant an exemplification, which will be evidence of the proving of the will. Or the act book of the court, containing an entry of the will having been proved, &c., will be sufficient, without accounting for the non-production of the probate b. The original will, though produced by the officer of the court, cannot be read in evidence unless it bears the seal of the court or some other mark of authentication. Where there are several executors, probate to one only is evidence of the title of all 4. The title of the plaintiff as administrator may be proved by the production of the letters of administration, or of a certificate or exemplification thereof granted by the ecclesiastical court, or by the original book of acts directing the grant of the letters, or by an examined copy of the act book 8. SECTION XIII. ACTIONS AGAINST EXECUTORS OR ADMINISTRATORS. Debt will lie against an exe cutor. 1. When and how an executor PAGE 2. The declaration PAGE ...1004 1005 1.—When and how an executor or administrator may be sued.] We have already considered in respect of what acts and contracts of the testator and of his own, an executor is liable1. It is here proposed to shew how his liability may be established in a court of law. Formerly an action of debt did not lie against an executor or administrator upon a simple contract when the testator or intestate could have waged his law. But wager of law having been abolished by the 3 & 4 W. IV. c. 42. s. 13, it is enacted by s. 14. of the same statute, "that an action of debt on simple contract shall be maintainable in any court of common law against any executor or administrator." Shepherd v. Shorthoze, 1 Stra. Cox r. Allingham, Jacob, 514. 378. Id. Eden v. Keddell, 8 East, 187. Per Bayley, J., in Ramsbottom v. Buckhurst, 2 M. & S. 567. & Id. h Ante, 984, et seq. Barry v. Robinson, 1 N. R. 293. An action at law cannot be maintained for a legacy, the remedy being in a court of equity a; nor will it lie for the distributive share of an intestate's property, although the executor or administrator may have expressly promised to pay b. But an action will lie for a specific legacy after the executor has assented; for after such assent, the interest in the thing bequeathed vests at law in the legatee. The executors of a will under which A., an insolvent debtor, was entitled to a legacy, gave his assignees a balanced account, wherein they admitted 6221. to be the amount of the legacy; but, on the other side, they debited the insolvent with a loan of 4007., advanced on the security of the legacy when it was in reversion; the assignees proved at the trial that the instrument by which the loan was secured was void under the insolvent act; held, that the assignees were entitled to recover the whole of the legacy, as the assignment was fraudulent a. Action for a legacy. have administered must be joined. In an action against executors or administrators, all who have All who administered must be joined. And if a defendant pleads in abatement, that he has one or more co-executors, who ought to be joined, he must aver not only that the co-executor is alive, but that he has administered, because it is only necessary to sue as many co-executors as have administered. In an action against a married woman, executrix, the husband must be joined as a defendant, and they must both plead, otherwise it will be a discontinuance f. It was held, before the uniformity of process act, that Deeks r. Strutt, 5 T. R. 690, overruling Atkins v. Hill, Cowp. 284, and Hawkes v. Saunders, id. 289; and see Gorton r. Dyson, 1 B. & B. 219. Jones v. Tanner, 7 B. & C. 542. Paramour . Yardley, Plow. 539. Young v. Holmes, 1 Stra. 70. Doe v. Guy, 3 East, 120. Williams v. Lee, 3 Atk. 223. Bastard v. Stukeley, 2 Lev. 209. Where an executor, before a sale of the goods of a deceased testator, tells a legatee, that she may purchase to a certain amount, (the amount of her legacy,) and that such purchase shall be an off-set to her legacy; such de claration amounts to a special con- 4 Rose v. Savory, 1 Hodges, 269. e Hilbert v. Lewis, Freem. 268. 1 Saund. 291. k. Swallow v. Emberson, 1 Lev. 161. Alexander v. Mawman, Willes, 42. Com. Dig. Abatement (F. 10.) f Com. Dig. Admin. (D.) Aylworth v. Fenn, Freem. 351. |