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 liable. It is here proposed to show how his liability may be established in a court of law. Formerly an action of debt did Debt will not lie against an executor or administrator upon a simple lie against contract when the testator or intestate could have waged his an execulaw. 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."

tor.

*An action at law cannot be maintained for a legacy, the *1003 remedy being in a court of equity; nor will it lie for the dis- Action for tributive share of an intestate's property, although the executor a legacy. or administrator may have expressly promised to pay."(1) 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 6227. 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

Ante, 984, et seq. b Barry v. Robinson, 1 N. R. 293. Deeks v. Strutt, 5 T. R. 690, overruling Atkins v. Hill, Cowp. 284, and Hawkes t. Saunders, id. 289; and see Gorton v. Dyson, 1 B. & B. 219. (5 Eng. C. L. 63.) Jones v. Tanner, 7 B. & C. 542. (14 Eng. C. L. 97.)

Paramour v. 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 declaration amounts to a special contract as to the mode of payment, and may be given in evidence in an action for the value of the goods sold, brought by the executor, though the sale was by auction, subject to written particulars of sale. Bartlett v. Pernell, 2 H. & W. 16.

(1) (As to actions against executors for legacies and distributive shares, see App v. Dreisbach, 2 Rawle, 287. Bixler v. Kunkle, 17 Serg. & R. 298. Foulk v. Brown, 2 Watts, 213. Morrow v. Brenizet, 2 Rawle, 185. M'Culloch v. Sample, 1 Penn. R. 424, 2 Penn. 494. Masterson v. Masterson, 5 Rawle, 137. Doebler v. Snavely, 5 Watts, 225. Knapp v. Han. ford, 7 Conn. 132. Kent v. Somerville, 7 Gill & Johns, 265.)

VOL. II.-16

All who

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."

In an action against executors or administrators, all who have ad- have administered must be joined. And if a defendant pleads ministered in abatement, that he has one or more co-executors, who ought must be joined. 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. It was held, before the uniformity *1004 of process act, that 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 court.d

Joinder of counts.

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. 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. 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 moneys 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 testatoriss

Rose v. Savory, 1 Hodges, 269. 2 Scott, 199.

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.)

Com. Dig. Admin. (D.) Aylworth v. Fenn, Freem. 351.

d Watson v. Pilling, 3 B. & B. 4. (7 Eng. C. L. 323.) 6 Moore, 66.

e Nation v. Tozer, 4 Tyr. 561. 1 C. M. & R. 172.

f

2 Saund. 117, c.

Id.

Wigley v. Ashton, 3 B. & A. 101. (5 Eng. C. L. 238.)

Wilson v. Wigg, 10 East, 313.

Powell v. Graham, 7 Taunt. 580.

(2 Eng. C. L. 223.) 1 Moore, 305.

So, an account stated by the defendant as executor, of moneys 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.

*3.—The pleadings.] In an action against an executor or *1005 administrator, the defendant may plead any matter which the testator or intestate might have pleaded."(1) 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 issue.

Where the defendant pleads ne unques executor or adminis- Ne unques trator, the onus of proving the affirmative of the proposition is executor. on the plaintiff, who may support it by the production of the probate or letters of administration, &c., 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. Evidence, however, of such acts as will render the defendant liable as executor de son tort, will be sufficient.

The plea of ne unques executor does not deny the cause of action, but only that the defendant represents the deceased.j 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

e

2 Saund. 117, e. Secar v. Atkinson, 1 H. Bl. 102. Com. Dig. Pleader, (2 D. 8.)

Id. (2 D. 7. 13.)

1 Saund. 300-306, in notis, Com. Dig. Pleader, (2 D. 9.) Tidd, 644, 9th Edit.

O Co. Litt. 283, a. 1 Ch. Pl. 490. 3 Id. 974.

'See ante, 1001.

b Id.

Phil. Ev. 346, 6th Edit.

As to what acts will make a man executor de son tort, see ante, 957.

i 1 Saund. 207, a.

Griffiths v. Franklin, M. & M. 146. (22 Eng. C. L. 270.)

(1) (An executor or administrator is not bound to plead the statute of limitations, where he believes a debt to be justly due. Smith's Estate, 1 Ashmead, 352. When executors sever in pleading, the court will take that plea which is best for the estate. Per Huston, J., in Lyon v. Allison, 1 Watts, 162.)

Plene ad

vit.

"Where the defendant pleads plene administravit, and the ministra plaintiff replies that the defendant had assets, it is incumbent on the latter to prove assets existing when the writ was sued out. 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. 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. Where an executor pleads plene administravit, and shows payments by him to the extent of the assets proved by the plaintiff to have come to his hands, the plaintiff may show 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." Where an executor, after payment of all the debts of which he had notice, invested part of the residue of the personal estate in the funds in his own name for the benefit of the residuary legatees; held, in an action against him, fifteen years after the death of the testator, on a specialty debt of which he had no notice, the facts above stated would not sustain a plea of plene administravit, for he had the estate of the testator still in his hands, and had complete control over it.

Judgment Where an administrator, after obtaining time to plead on the recovered, usual terms, pleaded a judgment recovered since the commencement of the action, but did not aver that there were 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 demand. 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 ad*1007 ministered; upon which issue was joined. At the trial the plaintiff having shown that the defendant received certain assets, the defendant proved payment to a greater amount, and

Mara v. Quin, 6 T. R. 5.

⚫ Id. 11. On an issue taken on a plea of plene administravit, the amount of probate stamp is not any, even prima facie, evidence of the amount of assets come to the hands of the executor. It is, however, admissible evidence on the subject of assets, on the ground of its being a declaration made by the executor at the time of obtaining probate, of his expectations as to the amount of assets. Mann v. Lang, 1 Harr. & Woll. 441. 5 Nev. & M. 202.

• Jones v. Roberts, 2 C. & M. 219. 4 Tyr. 48.

Marston v. Downes, 1 Adol. & Ellis, 31. (28 Eng. C. L. 24.) 3 Nev. & M. 861. 6 C. & P. 381. (25 Eng. C. L. 448.) Smith v. Day, 2 Mees. & Wels. 684.

Roberts v. Wood, 3 Dowl. 797.

a verdict was found in her favor; 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 plea. 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(1)

When the plaintiff has given prima facie evidence of assets, the defendant may show 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 notice. 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 show that the judgment was entered for more by mistake.

• Reeves v. Ward, 1 Hodges, 300. 2 Bing. N. C. 235. (29 Eng. C. L. 316.) 2 Scott, 290.

(1) (In proof of assets, the plaintiff may give in evidence the inventory of the personal estate of the deceased; and when such evidence is given, it is sufficient to throw the onus on the executor or administrator to show how he disposed of the goods and money specified in the inventory. Boyd v. Boyd, 1 Watts, 367. The creditor is not concluded by the appraisement. Willoughby v. M'Clure, 2 Wend. 609.)