dence any parol demise or any agreement (not being by deed) whereon a certain rent is reserved, do appear, the plaintiff shall not therefore be nonsuited, but may make use thereof as in evidence of the quantum of the damages to be recovered. (a) And by s. 15, if the tenant for life die before or on the day on which any rent was made payable, upon any lease which determined on the death of such tenant for life, his executors may in an action on the case recover the whole, or a proportion of such rent, according to the time such tenant for life lived of the last year, or quarter of a year, in which the said rent was growing due. (b)

An executor brought an action for rent due to his testator in his lifetime, and for other rent due in his own time, and there was another count on a quantum meruit for the rent of another messuage, in which he had not declared as executor. After judgment by default and a writ of enquiry executed, upon error brought, judgment was reversed, because the demands were incompatible; but perhaps it would have been helped by a verdict, because for rent due in his own time he need not declare as executor, and therefore if it had been tried, the judge ought not to have permitted him to prove rent due to himself in his own right.— Hooker v. Quilter, T. 21 Geo. II. Stra. 1271.

In case for use and occupation of an house by permission of the [139] plaintiff the defendant pleaded nil habuit in tenementis; and upon demurrer the court held it not a good plea, as it would be upon a lease at common law, because there an interest is supposed to have passed from

(a) Before this statute rent was recoverable by action of debt only. Green v. Harrington, Hutt. 34, in which plaintiff need not set forth the particulars of the demise, nor need he in assumpsit for use and occupation. Wilkins v. Wingate, 6 T. Rep. 62.

Assumpsit lies only where defendant holds by permission or by demise from the plaintiff, not where his possession is adverse and tortious, for that excludes the idea of a contract which in this action must be express or implied. Birch v. Wright, 1 T. R. 378. And it seems a general rule, that as this action is founded on a contract wherever a defendant enjoys by permission or demise from the plaintiff, he shall be liable without questioning the plaintiff's title. Morgen v. Ambrose, Esp. N, P. Dig. 21.

(b) Upon this clause Lord Hardwicke decided, that where a tenant in tail made a lease for years, and died without issue a week before the rent became due, his exccutor should have apportionment of the rent, for though tenant for life only is men, tioned in the statute, yet he was tenant for life as to this. Held also, that a tenancy for years determinable on lives, was within the mischief of the statute. Paget v. Gee, Ambl. 198.

So where a wife had an annuity payable quarterly, and died in the middle of a quarter, the annuity was adjudged to be apportioned, though annuities are not within the statute. Howell v. Hanforth, 2 Bla. 1016.

the

the lessor, but here the court must take it that there was an express promise, and therefore if the plaintiff had an equitable title, or no title at all, yet if the defendant have enjoyed by permission of the plaintiff, it is sufficient, and it is not necessary for the plaintiff to say it is his house, any more than in assumpsit for goods sold, to say they were the goods of the plaintiff.-Lewis v. Wallace, H. 25 Geo. II. B. R. 1 Wils. 314. S. C. nomme Lewis v. Willis. (a)

If a man declare upon a special agreement, and likewise upon a quantum meruit, and at the trial prove a special agreement, but different from what is laid, he cannot recover on either count, not on the first, because of the variance, nor on the second, because there was a special agreement. (b) But if he prove a special agreement and the work done, but not pursuant to such agreement, he shall recover upon the quantum meruit, for otherwise he would not be able to recover at all: (Weaver v. Borrows, M. 12 Geo. I. per Raym. 1 Stra. 648.) (c) As if in a quantum meruit for work and labour, the plaintiff proved he had built a house for the defendant, though the defendant should afterwards prove that there was a special agreement about the building of it, viz. that it should be built at such a time and in such a manner, and that the plaintiff had not performed the agreement, yet the plaintiff would recover upon the quantum meruit, though doubtless such proof on the part of the defendant might be proper to lessen the quantum of the damages. (Mr. Keck's Case, at Oron. 1744.) And perhaps in the first case put, the plaintiff ought to have been suffered to recover, if there had been a count on an indebitatus assumpsit; for though an indebitatus assumpsit will not lie upon a special agreement till the terms of it are performed, yet when that is done it raises a duty for which a general indebitatus assumpsit will lie.-Gordon v. Martin, T. 5 Geo. II. Fitzg. 302.

(a) Vide 12 Vin. Abr. 184. And where a tenant from year to year of a house at a yearly rent, becomes bankrupt in the middle of the year, and his assignees enter, and remain till the end, the assignees cannot maintain this, action, for the bankrupt's occupation, as well as their own, without proving their special instance and request for the bankrupt to occupy during the time that elapsed. before his bankruptcy. Naish v Tatlock, 2 1. Bla. 329. But where defendant (though holding

under a tenant at will only) has enjoyed the benefit of a contract (whatever the law may be as between the original landlord and first tenant.) Yet assumpsit is clearly maintainable by such tenant at will against him. Atkinson v. Pierpoint, Esp. N. P. Dig. 21. So if A. agrees to let land to B. who permits C. to occupy them, A. may recover the rent against B. for use and occupation. Bull v. Sibbs, 8 T. Rep. 327.

(b) Vide ante, p. 128 a note (b). (c) Vide 12 Vin. Abr. 200.

And

And this point now seems to be so settled: for in an action where the plaintiff declared on a special agreement, and also on a general indebitatus assumpsit, the plaintiff failed to prove his special count; and then it was objected that he ought not to be allowed to enter into proof of the general count: but Lord Mansfield suffered him to go into such proof; and the next day his Lordship declared in court, that he had asked Mr. Justice Wilmot (who was then with his Lordship on the circuit)

*

his opinion on a case of this kind, which happened before him at [*140] Launceston assizes, and which had been mentioned on the occasion; who said he did not recoliect that particular case, but that the circuit practice, according to his observation, had been on this distinction; when the plaintiff attempted to prove the special agreement, and failed in it, he was not permitted to go on the general indebitatus assumpsit. But his Lordship said, he did not approve of that distinction, and that his opinion, after the consideration he had given it was; that where the evidence is sufficient to warrant the plaintiff's action on the general count, supposing no special agreement had been laid in the declaration, the plaintiff should be permitted to recover on such general count, though there be a special agreement laid; whether he attempts to prove such special agreement or not: and that Mr. Justice Wilmot intirely con curred in this opinion.-Harris v. Oke, Winton Sum. Ass. 1759. (a)

Executors and Administrators.-Upon an assumpsit against an executor or administrator, the plaintiff must prove his debt, though the defendant have pleaded plene administravit; for by that plea, though a debt be admitted, yet the quantum is not; (Shelly's Case, T. 1693. Salk. 296.) and therefore it differs from debt in which the plea of plene administravit is an admission of the debt, and therefore it need not be proved. (b)

(a) This point seems to be further settled by the case of Payne v. Bacombe, Dougl. 628. (651) where the plaintiff declared in assumpsit on a special agreement to pay a proportion of the expence of a suit, but failing in the proof of that, he was allowed to resort to his usual count for money paid, &c.

(b) Plene administravit, without shewing how, is a bad plea to a sci. fa. on a judgment against the testator. Newton v. Richards, Salk. 296. 1 Ld. Raym. 3.

If an executor or administrator plead plene administracit præter, as certain, and also to another action in the same term plead the same plea præter the same sum, and as to that sum, that he had confessed it in the other action, such a plea is a good bar. Waters v. Ogden, 2 Dougl. 435. (452.)

To a plea of plene administravit præter, plaintiff may pray judgment of the sum admitted by the plea, and reply assets ultra. Lockyer v. Coward, 3 Wils. 52.

The plaintiff cannot upon this issue give in evidence a copy of an inventory delivered by the defendant to the spiritual court, unless it be signed by him, though it be signed by the appraisers; (Saunderson ▾. Nichol, M. 1 W. & M. 1 Show. 81.) but he may give evidence by witnesses, that the defendant had assets, or if he give an inventory in evidence, he may shew the goods were under-valued. (Welbourne v. Dewsbury, Per Eyre, C. J. H. 12 Geo. I. post.) (a) (Note, a leasehold estate not sold is assets ad valorem: and assets in Ireland are assets here.) (Richardson v. Dowey, M. 1605. Cro: Jac. 55. 1 Barnes, 240.) If in the inventory produced, the article concerning debts did not distinguish between sperate and desperate, it would be sufficient to charge the executor with the whole prima facie as assets, and put it upon him to prove any of them desperate, as if the article were, " Item, for debts due and owing, which I admit myself to be charged with when recovered or received."-Smith v. Davis, M. 10 Geo. II. Per Hardw. J. (b)

And in the case of sperate debts, the executor may discharge himself by shewing a demand and refusal.—Shelley's Case, T. 1693. Salk. 296.

If assets be proved in his hands, the defendant (the executor) may give in evidence that he has paid debts to the value, and need not plead it. (Co. Litt. 283.) So he may give in evidence a retainer for his own debt, [*141] or that the intestate before marriage with the defendant gave a bond to

J. S. conditioned to leave the defendant £500, and that she retained to satisfy this obligation. So if administration be granted to a creditor, and after repealed at the suit of the next of kin, the creditor may retain against the rightful administrator; for where administration is granted to a wrong person it is only voidable, but if it be granted in a wrong diocese it is void, and in such case there could be no retainer.-Simpson v. Tresler, in Kent, 1681, per Weston, Bar'. (c)

(a) Or he may shew the fact of defendant having other goods not mentioned in the inventory. Peake's Law of Evid. p. 347.

(b) But in a MS. note of this case by Mr. Selwyn, in his Abr. of N. P. Law, p. 695 (n). it is said, that Lord Hardwicke put the defendant on proof that she could not recover some of the debts in the inventory which she having done by witness, who demanded them, they were allowed as desperate.

(c) Payment of money to an executor who has obtained probate under a forged will, is a discharge to the debtor, though the probate be afterwards declared void, for (Per Grose, J.) the law will never compel any person to pay a sum of money a second time, which he has once paid under the sanction of a court of competent jurisdiction. Allen v. Dundas, 3 T. R. 125. 133.

Note;

Note; If a man have bona notabilia in several dioceses of the same province, there must be a prerogative administration; if in two of Canterbury and two of York, there must be two prerogative administrations, and if in one diocese of each province, each bishop must grant one.Burston v. Ridley, M. 1 Ann. Salk. 39.

Debts due by specialty are deemed the deceased's goods in that diocese where the securities happen to be at the time of his death. But debts by simple contract follow the person of the debtor, and are esteemed goods in that diocese where the debtor resides at the time of the creditor's death.—Byron v. Byron, H. 1595. Cro. Eliz. (472.) Godolph, 70. Office of Executor, 46.

The executor, on the plea of plene administravit, cannot give in evidence debts of a higher nature subsisting, but must plead them; it will not be improper therefore in this place to consider how they ought to be pleaded. Where the days of payment in the condition of a bond are past, the penalty is the debt, and therefore the ancient method of pleading them was to plead them singly, and set forth the penalty only; but the common way now is to set forth the condition likewise. But where the days of payment were not incurred at the death of the testator, the executor can only plead the sum in the condition, because he may deliver himself from the penalty by performing it; and if he refuse or neglect to do it, it will be a devastavit. But where the day of payment is past, though the executor set out the condition in his plea, yet he shall cover assets to the amount of the penalty, unless the plaintiff reply per fraudem, and on issue joined thereon, prove that the obligee offered to take a less sum than the penalty, and not more than the executor had to pay. If the testator acknowledge a recognizance, or enter into a statute with condition for the payment of a less sum at a future day, it will be a bar to debts of an inferior kind, though the day of payment be not yet incurred, because it is a present duty, and is on record, on which execution may be taken out without further suit; but a debt due by obligation is only a chose in action, and recoverable by law, and not a present duty as the other is.-Bank of England v. Morris, 9 Geo. II. Stra. 1028. 4 Bro. P. C. 287. fo. ed. 2 Bro. P. C. 465. Svo. ed. For the entry of this judgment at large, vide Ca. temp. Hardw. 230. (a)

(a) On a bond debt lies against the heir of an obligor who has lands by descent, if the executors have not sufficient assets, and the obligor

may bring his action against the heir or executor, although the executor have assets. Capel's Case, And. 7.