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Joinder of counts.

the defendant might be declared against as executor or administrator, although the process only described him generally, the object of the writ being merely to bring him into courta.

Where an action was brought against two persons, being the executors of a deceased termor, for the use and occupation by them of the demised premises, an entry and occupation by one of them was proved; held, that it did not enure as that of both, so as to make them jointly liable de bonis propriis, in assumpsit for use and occupation.

2.- The declaration.] In an action against an executor as such, a count cannot be introduced charging him individually, for the judgment in the one case is de bonis propriis, and in the other de bonis testatoris c. Therefore a count for money had and received by the defendant as executor, or for money lent for the use of the plaintiff, to him as such, cannot be joined with a count on a promise made by the testator . So, a count upon a promise by the defendant as executor for use and occupation after the death of the testator cannot be joined with a count on promises by the testator to pay rent, as the former makes the defendant personally liable, the latter makes him liable to the extent of assets only e. In an action of covenant against an executor the plaintiff may join a count for breach by the testator with a count for a breach after his decease, and a count on an account stated by an executor as such, of monies from the defendant as executor, may be joined with counts on promises by the testator, for on such count the judgment will be de bonis testatoris 8.

So, an account stated by the defendant as executor, of monies due from the testator, may be joined with counts on promises by the testator; and this is the common mode of declaring against executors and administrators to save the statute of limitations h

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3.-The pleadings.] In an action against an executor or administrator, the defendant may plead any matter which the testator or intestate might have pleaded a. In addition thereto, he may deny the character in which he is sued, by pleading ne unques executor or administrator, or that no assets had come to his hands; or that he had fully administered, or that he had administered with the exception of assets to a certain amount, which are not sufficient to satisfy the plaintiff'; or he may plead a retainer to pay his own debt, or debts of a higher degree, due to third persons, as bonds, outstanding judgments, &c. The defendant cannot avail himself of either of these, defences under the general issued.

executor.

Where the defendant pleads ne unques executor or adminis- Ne unques trator, the onus of proving the affirmative of the proposition is on the plaintiff, who may support it by the production of the probate or letters of administration, &c. e, or by giving secondary evidence of them after a notice to produce the documents themselves being served on the defendant'. Some proof of the identity of the defendant, namely, that he is the person described in the documents as executor or administrator, must be given 8. Evidence, however, of such acts as will render the defendant liable as executor de son tort, will be sufficient 1. The plea of ne unques executor does not deny the cause of action, but only that the defendant represents the deceased i. Therefore, where in assumpsit against two defendants as executors, there was a plea by both of ne unques executors, and it appeared in evidence that one of the defendants was executor, and the other not; held, that the plaintiff might have a verdict against the former, on the counts laying the promises by the testator, and that the other defendant should be discharged, and that the plaintiff could not recover on counts upon promises by them both as executors k.

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Plene administravit.

Judgment recovered.

Where the defendant pleads plene administravit, and the plaintiff replies that the defendant had assets, it is incumbent on the latter to prove assets existing when the writ was sued out a If the assets came into the hands of the defendant after the writ was sued out, the plaintiff should reply that fact specially; he will not be allowed to give it in evidence under the general replication b. Where the defendant pleads plene administravit præter a sum which is not sufficient to satisfy an outstanding judgment, the plaintiff may reply that the judgment was kept on foot through fraud c. Where an executor pleads plene administravit, and shews payments by him to the extent of the assets proved by the plaintiff to have come to his hands, the plaintiff may shew in answer that the funds so applied did not come to the defendant as executor, but were handed to him in trust to pay the testator's debts, and were not part of the assets at first proved to have come to his hands d.

Where an administrator, after obtaining time to plead on the usual terms, pleaded a judgment recovered since the commencement of the action, but did not aver that there was no assets ultra. The court gave leave to the plaintiff to sign judgment as for want of a plea; the defendant having, since the commencement of the action, admitted by the latter the possession of assets sufficient to cover the judgment, and also the plaintiff's demande. Where an executrix pleaded in assumpsit that she had not, nor at the commencement of the action or since, had any goods which were of the testator at the time of his decease in her hands to be administered; and the plaintiff replied, that the defendant, before and at the time of the commencement of the action and since, had divers goods of the testator to be administered; upon

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which issue was joined. At the trial the plaintiff having shewn that the defendant received certain assets, the defendant proved payment to a greater amount, and a verdict was found in her favour; held, first, that evidence of the payments was properly received; and secondly, that the plaintiff was not entitled to judgment non obstante veredicto, upon the ground that the introductory part of the plea did not state that the executrix had fully administered the testator's goods.

Where an administrator, being under terms to plead issuably, pleads inconsistent pleas, as plene administravit, and his own bankruptcy, the plaintiff may sign judgment as for want of a pleab. Plene administravit is no bar to an action against an executor, upon a covenant by the testator, where the executor has paid over the residue within six months after probate c.

When the plaintiff has given prima facie evidence of assets, the defendant may shew under the issue raised on plene administravit that those assets have been exhausted by payment, before action brought, of debts of a higher degree or of an inferior degree, without noticed. If the defendant has paid debts to the amount, after the suing out, but before notice of the plaintiff's writ or debt, he must plead such defence specially; for no payments made after the action commenced can be given in evidence under plene administravit. Where a bond of the testator's has been paid by the executor in order to avail himself of the payment; under plene administravit he must prove the due execution of it by calling the subscribing witness, even though the bond has been destroyed. In answer to proof by the plaintiff, that the debt paid by the defendant was not a just one, or that less is due than the sum for which judgment was given, and which is prima facie evidence of fraud, the defendant may shew that the judgment was entered for more by mistake.

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What will amount to an admission of assets.

SECTION XIV.

ADMISSION OF ASSETS.-DEVASTAVIT.

If an executor suffer judgment by default, or judgment be given against him on demurrer to the declaration, or if he plead payment of a bond and omit to plead plene administravit, it will operate as an admission of assets, in an action against him on the judgment suggesting a devastavit. For it is a universal principle of law, that if a party do not avail himself of the opportunity of pleading matter in bar to the original action, he cannot afterwards plead it in another action founded upon it, or in a scire facias b. Therefore, in an action of debt on a judgment suggesting a devastavit, it will be sufficient for the plaintiff, under a plea of devastavit, to prove the former judgment, and the return of nulla boná to the fieri faEvidence of cias c. In debt on a judgment recovered by default against an executor, the roll of proceedings in the original action shewing a return of nulla boná by the sheriff to the writ of fi. fa. issued to recover the debt de bonis testatoris, is sufficient primâ facie evidence of a devastavit d. Where the defendant pleads non est factum testatoris, or a release to the testator, or payment by him, or non assumpsit, these pleas admit assets. So if an executor or administrator submits to an arbitration, it is an admission of assets, as between the parties to the submission. But it is not sufficient to charge an executor with assets, to shew that he has acquiesced in the receipt of assets by his co-executors. On plea of plene administravit, proof of an admission by the executor that the debt was just, and should be paid as soon as he could, is not evidence to charge him with assets .

a devasta

vit.

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