If the executor plead twenty judgments, he confesses assets for above nineteen, and yet at his peril he must plead all the judgments, for otherwise, if the creditor pray judgment of assets quando acciderint, he shall not be allowed for those not pleaded; and if he plead five judgments, and one be false or fraudulent, and so found, he is saddled with the whole debt; so if any one be ill pleaded.-Atfield v. Parker, E. 12 W. III. 12 Mod. 496. Rouse v. Etherington, E. 1 Ann. Salk. $12. (a)

An executor pleaded, that his testator had entered into a statute which remained in force and not paid; upon demurrer, because not averred to be for a just debt, the court held the plea good, for that it should be intended to be for a just debt, and he who will take advantage of the contrary ought to shew it.-Philips v. Echard, E. 1603. Cro. Jac. 835.

In debt for rent, though the lease be by parol and the term determined, a bond outstanding cannot be pleaded in bar, for the contract still remains in the realty.-Newport v. Godfrey, E. 2 W. & M. 3 Lev. 267.(b)

If a judgment being pleaded, and per fraudem replied, and issue taken thereupon, by evidence it appear the debtee was willing to take less than is recovered, it is evidence of fraud, unless the executor shew that he had not assets to pay the same.-Rouse ▼. Etherington, sup. (c)

Where upon the issue of plene administravit a verdict is found, that the defendant has assets to part of the debt; yet judgment shall be entered for the whole debt, but the si non &c. de bonis propriis ought

(a) So if an executor plead six judgments against him, and nul assets ultra, he confesses that he has assets above five, and if the replication take issue upon the reins ultra a certain sum, it is ill. Aston v. Sherman, Salk. 298. Ld. Raym. 263.

(b) In debt for rent an executor may plead no assets, and that the premises are of less value than the rent. Billinghurst v. Speerman, 1 Salk. 297.

(c) To a plea of judgments, and no assets ultra, plaintiff replied per fraudem. It appeared that the judgments were given for nearly double the debts by mistake, and without fraud, as the debts were more than the assets. Held, that this was conclusive evidence of fraud, and precluded further enquiry. Verdict for plaintiff, but it was afterwards set aside, the court holding, that, as

there was no fraud in fact, there was none in law, but the defendant should have pleaded the sums really due. Pease v. Naylor, 5 T. Rep. 80. Vide etiam Parker v. Atfield, Salk. 311. Ld. Raym. 678, where it was held, that pleading of judgments is a confession of assets to satisfy them, and the riens ultra a certain sum is but form, and not material or traversable.

If an executor plead several judg ments, plaintiff may reply to every one that they were obtained by fraud, or he may plead seperalia judicia, &c. obtent. per fraudem; but if he plead seperalia, &c. if one be found a true debt he will be defeated. Trethuny v. Acland, 1 Mod. 33. 2 Saund. 48; and see Mr. Serjeant Williams' observations on this case, 1 Saund, 337-(b), n. 2.

to be as to the costs only, and execution ought to be taken out only for so much of the debt, for which the defendant is by the verdict found to have assets. Mary Shipley's Case, 8 Co. 134. Bank of England v. Morris, ante, p. 141 a.

If an executor suffer judgment by default, it is a confession of assets sufficient to pay the debt, and therefore the sheriff may return a devastavit to a fi. fa. if he cannot find goods of the testator; and if the executor do not plead such judgment and nul assets ultra to another action, but admit judgment to go by default, it is a confession of assets as to that likewise.—Rook v. Salisbury Sheriff, T. 12 W. III. 12 Mod. 411. Salk. 310. S. C. nom. Rock v. Leighton. (a)

But a cognovit actionem is not a confession of assets.-Bird v. Culmer, Hob. 178.

Judgment against B. in C. B. who after judgment enters into a statute and dies, his administrator brings error on the judgment, which is affirmed, and upon a sci. fa. to have execution, pleads payment of the statute, and nul assets ultra, and it was holden a good plea; for at the time of the execution of the statute he could not plead the judgment in bar, and therefore payment of the statute was no devastavit.-Ride v Buelock, M. 1602. Yelv. 29.

(a) In Skelton v. Hawling, 1 Wils. 258, (but more correctly stated by Mr. Serjeant Williams in a note to 1 Saund. 219.) A. brought debt against B. an administrator, who suffered judgment by default, and made his will, appointing C. executor. An action on the judgment, suggesting a devastavit, being brought against C. he pleaded quod plene administravit the effects of B. and the judgment by default was held to be evidence of a devastavit. Vide Wharton v. Richardson, Stra. 1075, where a sci. fa. was brought against an administratrix on a judgment against her husband, and after two nihils returned a sci. fieri inquiry was taken out; and held, that the award of execution on the former writs was evidence of assets, but where there has been no sci. fieri, and only two nihils returned, the court, on motion, will set aside the award of execution, and admit defendant to plead if he come in time. Sed secus after two years acqui

escence.

Stra. 1198.

Vide Mitford v. Cordwell,

The most leading case on the subject of assets is Rock v. Layton, 1 Ld. Raym. 589. Comy. 87. (and imperfectly reported in Salk. 310, nom. Rock v. Leighton), which was fully stated by Buller, J. in Erving v. Peters, 3 T. R. 689, from Lord Holt's MSS. from whose note it appears to have been Lord Holt's opinion that if an heir plead non est factum, or conditions performed, a general judgment shall be given, if the matter pleaded be found against him. So if the matter be found against an executor, he admits assets next followed. Ramsden v. Jackson, 1 Atk. 292, where Lord Hardwicke thought himself bound by the above authority, and decided that an executor having pleaded non est fuctum, which was found against him, could not afterwards be relieved on account of a deficiency of assets.

The

The sheriff to a sci. fa. having returned that the defendant the execu tor had wasted, he appeared at the return of the writ and plene admini[*143] stravit, and traversed the wasting:* on issue thereon, the inventory exhibited by the defendant in the ecclesiastical court was allowed to be evidence sufficient to put the executor to shew how he had disposed of the goods and money mentioned therein.-Ayliff v. Ayliff, 2 H. Geo. I. C. B.

In strictness, no funeral expences are allowed against a creditor, except for the coffin, ringing the bell, parson, clerk, and bearers' fees, but not for the pall or ornaments.

The usual method is to allow £5.

Upon the plea of ne unques executor evidence may be given, that the seal of the ordinary is forged, or the administration repealed, or that there were bona notabilia, for they confess and avoid the seal; but evidence that another person is executor, or that the testator was non compos, or that the will was forged, cannot be given, for that would be to falsify the proceedings of the ordinary wherein he was judge.-Noel y. Wells, H. 19 & 20 Car. II. 1 Lev. 235.

If it be alledged that a simple contract debt is paid, the very debt ought to be proved as well as the payment. So if an executor plead plene administravit to an action upon a bond, he must prove the debts paid to be on bonds sealed and delivered. (a) But in an action for a simple contract debt on the like plea, proof of payment is sufficient, for if no bond, it is a good administration.-Saunderson v. Nicholson, M, 2 W. & M. 2 Show. 81.

Note; In such case the creditor may prove his bond, and the debt due upon it, and the payment of it.-Kingston v. Grey, 28 W. III. 1 Raym. 745,

If an executor plead plene administravit, and thereupon issue is joined, the defendant has admitted himself executor, and therefore cannot shew that he only acted as agent for the executor, for then he should have pleaded ne unques executor. But if he give in evidence a retainer, (b)

(a) On a plea of plene administrarit to debt on judgment against the intestate, not docketted according to the statutes 4 & 5 W. & M. c. 29, defendant may give in evidence payment of bonds and other specialty debts, which exhausted all the assets. Hickey v. Hayter, 6 T. R. 384, on the authority of which it was held,

1

in Steel v. Rorke, 1 Bos. & Pull. 307, that an outstanding judgment against a testator or intestate, not docketted, cannot be pleaded to an action on simple contract.

(b) A right of retainer may be either pleaded or given in evidence. Plumer v. Marchant, 3 Burr. 1380.

the

the plaintiff canpot object that as executor de son tort he cannot retain, without shewing the will and who are rightful executors.—Arnold v. Arnold, H. 6 Geo. II. per Eyre, C. J.

If a man bring an action against an executor de son tort, he may declare against him as executor of the last will and testament; (Alexander v. Lane, M. 6 Jac. I. Yelv. 137.) therefore if defendant plead a retainer, he ought to shew that the testator made him executor; and it is not enough to say that the testator made his will, and that he suscepto super se onere testamenti paid divers debts, and retained for a debt of his own. (Atkinson v. Rawson, M. 27 Car. II. C. B. 1 Mod. 208.) If he so plead, the plaintiff may either demur for this cause, or reply that he is executor de son tort. (Vaughan v. Browne, H. 1738. Stra. 1100. Andr. 532.) (a) But in such case the defendant may rejoin, that puis darrein continuance letters of administration have been granted to him, for such administration will legitimate all intermediate acts, and justify a re- [144] tainer.-Vaughany. Browne, H. 1738. Stra. 1106. Andr. 332. Ş. C. (b)

(a) An executor de son tort is liable to all the troubles of an executorship without any of the advantages, for he cannot bring an action in right of the deceased. Anon. Noy. 69. Bro. Abr. tit. Administrator, pl. 8. Yet he may be sued as a rightful executor. Ampson v. Stockburn, Noy. 13. And he must be declared against as executor testamenti. Coulter's Ca. 5 Co. 31. Alexander v. Lane, Yelv. 137. In all cases he shall be charged with the testator's debts, so far as he has assets. Stokes v. Porter, Dy. 166 (b), but for a false plea he will be severely punished, for in such case execution shall be awarded against him for the whole debt, though he only meddle with a trifle. Anon. Noy. 69. As against creditors in general, how ever, he shall be allowed all payments to any other creditor of greater or equal degree, himself only excepted. Ayre v. Ayre, 1 Ch. Ca. 33. Coulter v. Ireland, Mo. 527. 5 Co. 30; for in no case can he retain to pay himself. Alexander v. Lane, sup.

(b) Vide Anon. 7 Mod. 31. Salk. 113, where it was held, that, if an executor de son tort deliver the goods to the administrator before action brought, he may plead plene administravit, but he cannot discharge himself from a creditor's action by

delivering over the effects after action brought, nor can he, after such action, retain his own debt, though of a higher nature, even with the consent of the rightful executor; and this, said Lord Kenyon, in Curtis v. Vernon, 3 T. R. 587. is clear from all the authorities on the subject, which he enumerated. The defendant, however, being dissatisfied, brought his writ of error, when, after an elaborate argument, Lord Loughborough declared the opinion of the court to be, that as the law was settled upon both points there rested upon by a series of authorities, from Coulter's Ca. sup. to the Anon. Ca. in Salk. 113, the court ought not to overturn it, whatever the hardship or inconvenience might be. The authorities enumerated and relied upon in Curtis v. Vernon were, Keble v. Osbaston, Hob. 42. Bradbury v. Reynell, Cro. Eliz. 565. Whitehead v. Sampson, Freem. 265. Loveday v. Young, 2 Show. 373. Baker v. Beresford, 1 Sid. 76. Pyne v. Woolland, 2 Vent. 179. Williamson v. Norwitch, Sty. 337. Vaughan v. Browne, 2 Stra. 1106, and Padget v. Priest, 2 T. Rep. 97, in which last case it was held that the slightest intermeddling with an intestate's goods will constitute an executor de son tort.

Executors

Executors are no further chargeable than they have assets, (a) unless they make themselves so by their own act, as by pleading a false plea ; i. e. such a plea as will be a perpetual bar to the plaintiff, and which of their own knowledge they know to be false; as ne unques executor, or a release to himself. But if he plead a former judgment had against him by another person, and nil ultra, and the plaintiff reply per fraudem, and it be so found, yet the judgment shall only be de bonis testatoris.--Holt v. Hoare, M. 37 Eliz. 1 Rol. Abr. 931.

If an executor plead plene administravit, and the plaintiff reply that he sued out his original such a day, and that the defendant had assets then; and the defendant in his rejoinder takes issue, that he had not assets then the plaintiff need not give in evidence a copy of the original to prove the time of its being taken out, because the defendant admits it by his rejoinder. But if the plaintiff reply assets at the time of exhibiting his bill, viz. such a day, and conclude his replication to the country ; (which in such case he may;) though the plaintiff lay his bill to be exhibited on the first day of the term, if in fact it were exhibited afterwards, the defendant shall have advantage thereof on the evidence, so that he shall not be bound for what he paid before. The difference between those two cases depends solely on the manner of the plaintiff's replying; for in the first case, the plaintiff alledged the time of suing out the original, as a distinct positive fact, and concluded with an averment; and so the defendant was at liberty to take issue in his rejoinder, on the time of the original's issuing, or on his having assets: but in the last case, the defendant had no opportunity of putting the time of exhibiting the bill in issue; but was obliged to join in the issue taken by the plaintiff, that the defendant had assets at the day the plaintiff exhibited his bill, and the day mentioned in the replication, being alledged under a videlicit is totally immaterial.-Palmer v. Lawson, E. 19 Car. II. 1 Sid. 332.

On plene administracit he may give in evidence, that he was but executor durante minoritate, that he paid such debts and legacies, and that he had delivered over the residue of the testator's personal estate to the infant when he came of age, for his power then ceases, and the new executor is liable to all actions. But he will be answerable for as much as

[145] he has wasted, and the new executor has his remedy against him; but quare, whether he is liable to other men's suits? In 1 Mod. 175, it is said he is not, but in Packman's Case, 6 Co. 19. and Palmer v. Litherland,

(b) Per Man field, C. J. in Harrison v. Beccles, cited 3 T. Rep. 688. Et vide Dearne v. Grimp, 2 Bla.

1275. Waters v. Ogden, Dougl. 435, (452). Barry v. Rush, 1 T. Rep. 691. Pearson v. Henry, 5 T. Rep. 6.

Latch.