an admis sion of as sets. *SECTION XIV. ADMISSION OF ASSETS.-DEVASTAVIT. What will Ir an executor suffer judgment by default, or judgment be amount to 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."(1) 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. Therefore, in an action of debt on a judgment suggesting a devastavit, it will be sufficient for the plaintiff, under a plea of non devastavit, to prove the former judgment, and the return of nulla bona to the fieri Evidence facias. In an action against executors, if they plead over and of a devas- the verdict pass against them, the production of the judgment tavit. roll on a scire fieri inquiry before the sheriff is sufficient primâ fucie evidence of assets to find a devastavit. In debt on a judgment recovered by defaull against an executor, the roll of proceedings in the original action showing a return of nulla bona by the sheriff to the writ of fi. fa. issued to recover the debt de bonis testatoris, is sufficient primâ fucie evidence of a devastavit. Where the defendant pleads non est fuclum 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 show that he has acquiesced in the receipt of assets by his co-executor."(2) On plea of plene administravit, proof of an admis Erving v. Peters, 3 T. R. 685. Rock v. Leighton, Salk. 310. 1 Lord Raym. 589. 2 Stark. Ev. 326. Erving v. Peters, 3 T. R. 685. Id. Per Buller, J., 3 T. R. 689. Barry v. Rush, 1 T. R. 691. See ante, 991. h Stearn v. Mills, 4 B. & Ad. 657. (24 Eng. C. L. 133.) 1 N. & M. 434. The inventory exhibited in the Ecclesiastical Court by an executor, for the purpose of obtaining probate, is not generally prima facie evidence of having received assets. Id. But see Giles v. Dyson, 1 Stark. 32. (2 Eng. C. L. 282.) Hickey v. Hayter, 6 T. R. 384. (1) (Gaither v Welch's Estate, 3 Gill & Johns, 259. On a judgment against an administrator as such, the proper goods of the administrator cannot be taken in execution; if assets of the intestate cannot be found, the administrator can be pursued personally only in an action for a devastavit. Mead v Kilday, 2 Watts, 110.) (2) (See ante p. 974, note (1).) sion 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. In an action against executors for a debt of the testator, a Legatee. legatee is a good witness for the defendants; for his legal rights under the will cannot be affected by the verdict.b *SECTION XV. COSTS. *1009 nistrators when non suited, or the courts FORMERLY executors or administrators were not liable to Executors costs in case of a nonsuit, or a verdict against them, when they and adminecessarily sued in their representative character, as upon a contract entered into by the deceased in his lifetime; though to costs are liable when they might sue in their own name, as where the cause like other of action arose after the death of the testator or intestate, they parties were not exempt from costs. But now by 3 & 4 W. IV, c. 42, s. 31, "in every action brought by an executor or administra- when a tor in right of the testator or intestate, such executor or admin- verdict istrator shall, unless the court in which such action is brought, passes or a judge of any of the superior courts of law at Westmin- against ster, shall otherwise order, be liable to pay costs to the defend- them; but ant in case of being nonsuited, or a verdict passing against the have a displaintiff; and in all other cases in which he would be liable, if cretion in such plaintiff were suing in his own right, upon a cause of exemptaction accruing to himself; and the defendant shall have judg- ing them ment for such costs, and they shall be recovered in like man- in cases ner. This enactment was held to have a retrospective opera- where fortion. "The general rule now is, that an executor or admin- merly istrator who has been nonsuited, or who has lost a verdict, is they were liable to costs; and it is cast upon him to make out that there not liable are particular circumstances in his case which would justify the court in exempting him, by an exercise of their discretionary authority." Hindsley v. Russell, 12 East, 232. from costs to them. Burghart v. Hall, MS., Coram Lord Abinger, C. B. Sittings after T. T. 1837, rule for a new trial granted. Their exemption was founded not on any express enactment, but on the description of words contained in the statute 23 Hen. VIII, c. 15. Per Lord Eldon, C. J., in Tattersall v. Grote, 2 B. & P. 253. Per Tindal, C. J., 1 Bing. N. C. 302. (27 Eng. C. L. 400.) See Tidd's Prac. 9th Ed. 978. 4 Grimstead v. Shirley, 2 Taunt. 116. Jones v. Jones, 1 Bing. 249. (8 Eng. C. L. 312.) Dowbiggin v. Harrison, 9 B. & C. 666. (17 Eng. C. L. 470.) Forster, 1 B. & Aď. 6. (20 Eng. C. L. 331.) Slater v. Lawson, id. 893. C. L. 504.) Jobson v. (20 Eng. e * 3 & 4 W. IV, c. 42. Freeman v. Moyes, 1 Ad. & Ell. 338. (28 Eng. C. L. 103.) 3 N. & M. 883. Grant v. Kemp. 2 Č. & M. 636. Per Tindal, C. J., in Wilkinson v. Edwards, 1 Bing. N. C. 303. (27 Eng. C. To exempt executor from costs, when there is a verdict *1010 against him, it is not sufficient for him to show that the action. was brought bond fide, and with a fair chance of succeeding; but some misconduct on the part of the defendant, or some other special cause for exemption must be shown; and the conduct of the defendant after action brought, relative to the mode of conducting the defence, will not be considered by the court in exercising their discretion. Nor is it sufficient to show that the action was brought under legal advice to try a doubtful point of law, which it was necessary to have decided, in order to obtain an equitable administration of the assets in a creditor's suit. But where an executor was nonsuited in an action on a policy of insurance effected on the life of the testator, the court ordered judgment to be entered up for the defenfendant, without costs, it appearing that it was the bounden duty of the executor to bring the action; besides, he was defeated on a ground which he could not be supposed to apprehend.d The courts have no authority under the above statute to exempt an executor from costs, which, before the act, he would be liable to pay; the express object of that statute being to impose additional liability on executors and administrators. Where an executor seeks to be relieved from costs, he should make his application before taxation, otherwise, if granted, it will be only on payment of the costs of the application. It is not settled, whether the decision of a single judge respecting such costs is final, or whether it is subject to the review of the court.5(1) L. 400.) 1 Scott, 173. Per Lord Denman, C. J., in Farley v. Bryant, 1 H. & W. 775. 3 Ad. & Ell. 852. (30 Eng. C. L. 243.) 5 N. & M. 57. *Southgate v. Crowley, 1 Bing. N. C. 518. (27 Eng. C. L. 477.) 1 Hodges, 1. 1 Scott, 374. Lewis v. Marfelt, Ĭ Mur. & Hurl. 5. Godson v. Freeman, 1 Gale, 329. 2 C. M. & R. 585. Vaughan, J., dissentiente. b Farley v. Briant, 1 Har. & W. 775. (30 Eng. C. L. 243.) 3 Ad. & Ell. 852. • Id. . Lysons v. Barrow, 10 Bing. 563. (25 Eng. C. L. 244.) 4 M. & Scott. 463. Ashton v. Poynter, 1 Gale, 57. 1 C. M. & R. 738. Spence v. Albert, 2 Ad. & Ell. 785. (29 Eng. C. L. 212.) 4 N. & M. 385. 1 H. & W. 7. Ashton v. Poynter, supra. Maddox v. Phillips, 3 Ad. & Ell. 198. (30 Eng. C. L. 72.) 1 H. & W. 251. Lakin v. Massie, 1 Gale, 270. 4 Dowl. 239. (1) (The rule upon the subject of costs is thus laid down: Wherever an executor or administrator brings an action in autre droit, that is, founded upon a transaction which arose in the lifetime of the testator or intestate and fails, he shall not pay costs, but if for a cause to which he himself was a party, although the fruits of the suit if successful would be assets when recovered, yet if he fails he shall pay the costs out of his own pocket. Per Kennedy, J., in Potts v. Smith, 3 Rawle, 377. See Muntorp v. Muntorp, 2 Rawle, 180. Armstrong's Estate, 6 Watts, 236. Healy v. Root, 11 Pick. 389. Jenison v. Hapgood, 14 Pick. 345. Pierce v. Saxton, Id. 274. Blake v. Dennie, 15 Pick. 385. Crofton v. Isley, 6 Grant, 48. Eames' Adm. v. Creditors, 4 Verm. 257. 3 Johnson's Digest, 335. 2 Selwyn's N. P. (Ed. of 1831,) p. 31, and note I.) SECTION XVI. JUDGMENT. will be de WHENEVER the action against an executor or administrator When the can only be supported against him in that character, and he judgment pleads any plea which admits that he has acted as such, except bonis testaa release to himself, the judgment against him must be, that toris et si the plaintiff do recover the debt and costs to be levied out of non de bothe assets of the testator, if the defendant have so much, but nis proif not, then the costs out of the defendant's own goods, other- priis. wise the judgment will be erroneous. As where the defendant pleads non est factum testatoris, or a release to the testator, or non assumpsit. So where he pleads plene administravit and it is found against him. But where the defendant pleads ne unques executor, or a release to himself, and it is found against him, the judgment is, that the plaintiff do recover both the debt and costs in the first place, de bonis testatoris si, &c., and si non, &c., de bonis propriis, because the executor cannot but know these to be false pleas. Upon a plea of plene administravit the executor or administrator is liable only to the amount of assets proved to be in his hands, and judgment should be entered up for that amount only. If the plaintiff Judgment cannot deny the plea of plene administravit, he should pray of assets judgment of assets quando acciderint, or assets in futuro quando aceither generally or specially, as," which after satisfying moneys due on the outstanding judgments, bonds, &c., mentioned in the defendant's plea, shall come into the defendant's hands as executor," &c. In assumpsit against an executor, he pleaded a retainer and plene administravit præter, and the plaintiff, admitting the truth of the pleas, took judgment of assets quando "acciderint; held, that he was entitled to enter it up for the *1012 debt and costs.f If the plea be plene administravit præter a sum which the defendant acknowledges to be in his hands, the plaintiff (if he cannot controvert it) should take judgment pro tanto, and of assets quando acciderint, as to the residue. If the defendant has pleaded the general issue, or any other plea denying the ciderint. 1 Saund. 335. Id. As to the effect of a mistake in entering judgment de bonis propriis instead of de bonis testatoris, &c., see id. Short v. Coffin, 5 Burr. 2730. Burroughs v. Stevens, 5 Taunt. 554. (1 Eng. C. L. 186.) 1 Saund. 336, b. 1 Saund. 219, b. 336. Hargthorpe v. Milforth, Cro. Eliz. 319. Harrison v. Beccles, cited, 3 T. R. 683. • Com. Dig. Pleader, (2 D. 9.) 2 Saund. 226. Mary Shipley's Case, 8 Co. 134. 1 Ch. Pl. 589. 'Cox v. Peacock, 1 Hodges, 272. 2 Scott, 125. De Tastett v. Andrade, 1 Ch. 629. (18 Eng. C. L. 185.) debt or cause of action, with the plea of plene administravit the plaintiff must proceed to trial to establish his debt, and on the prayer of judgment of assets quando, &c., upon the plea of plene administravit, there is a stay of judgment until the determination of the issue. But where the debt has not been denied, and the defendant has merely pleaded plene administravit, and the plaintiff prays judgment quando, &c., there should be an entry of that judgment immediately. This is an interlocutory or final judgment, according to the nature of the action; and if it be only interlocutory, there must be a writ of enquiry to ascertain the amount of the plaintiff's demand. By taking a judgment of assets quando, the plaintiff admits that the defendant has fully administered to that time. If the plaintiff takes issue on the plea of plene administravit, and it be found against him, he cannot have judgment of assets quando.d SECTION XVII. ADMINISTRATION BOND. THE statute 21 Hen. VIII, c. 5, s. 3, directs the ordinary to grant administration, "taking surety of him or them, to whom shall be made such commission;" and the statute 22 & 23 Car. II, c. 10, s. 1, further provides, "that all ordinaries, ecclesiastical judges, &c., shall, upon granting administration, take sufficient bonds, with two or more sureties, of the persons appointed administrators, in the name of the ordinary, with *1013 condition *that such administrators shall make a true inventory of the goods and chattels of the deceased; and shall well and truly administer such goods and chattels according to law, and cause a true and just account of the said administration, &c., to be made, and shall deliver and pay unto such person or persons respectively, as the judge of the court in which administration was granted, by his decree or sentence shall appoint, all the rest and residue of such goods and chattels as shall be found remaining on the said administrator's account, the same being first examined and allowed by the said judge,' &c. Action on If the bond given to the ordinary under this statute has been the bond. forfeited, the parties desirous of enforcing it against the sureties, must apply to the ecclesiastical court to pronounce it forfeited, in order to its being put in suit. It seems that the next a1 Ch. Pl. 589. Tidd, 683. If the action be in debt, the judgment is final in the first instance. c 2 Saund. 219, a. 2 Saund. 217. |