RETAINER. OUTSTAND- between com ved by the Court to be NOTE.-In debt against an executor who pleads nothing in his hands except $10 which he retains for his own debt, if the plaintiff replies that he is executor of his own wrong, and that he has goods beyond the $10, there he ought to conclude to the country; a conclusion with a verification would be bad; for there is an express affirmative and negative, R. Yelv. 137; 1 Saund. 102. It is held to be optional in an executor, either to plead a retainer of a debt due to him, (which must be a debt of an equal degree,) or give it in evidence on the plea of plene administravit. 1 Brow. 75; 3 Burr. 1380, 1385; 2 Bl. Rep. 965. If the defendant is sued, as executor, and is administrator, and pleads a retainer as administrator, he should make profert of his letters of administration; for the writ and declaration does not admit him administrator. T. Jon. 23. If an executor de son tort plead plene administravit generally, and attempt to give in evidence a retainer, there to avoid it, the plaintiff must show a will and a rightful executor. 6 T. R.550. It seems necessary to state some certain sum in the plea, or at least to say, goods and chattels to the value of the debts aforesaid; for to plead generally, "except goods or chattels, which do not amount to, or are not sufficient to satisfy the debts aforesaid, or not ultra what will satisfy," or to the like effect, would be bad for uncertainty. 9 Rep. 109, 110; 1 Roll. 922; Doc. Plac. 61, 170; 1 Sid. 210. See Entries, Lib. Plac. 140; Pl. 54, 150; Pl. 78, 180; Pl. 135; Lilly, 112. But the omission is mere form, neither material nor traversable. 1 Salk. 312; 1 Saund. 333, notes (7.) 6. Outstanding Debts. his PLEA. And the said D. comes and defends &c., when &c., and says, (actio non,) because he says, that the said A. A. the testator, Plea. There is in his lifetime, to wit, on &c., by his certain writing obligatory, an outstanding bond, and the sealed with his seal, became bound to one B. B. in the sum of $70, dft. hath fully to be paid to the said B. B. whenever the said A. A. should be administered, thereto requested, (" with (a) a condition thereto subscribed, that if save $5. the said A. A., his heirs, executors, or administrators, should, and (a) The part did well and truly pay, or cause to be paid unto the said B. B., mas was not in executors, administrators, or assigns, the full sum of $35, on or bethe original; fore &c., with lawful interest for the same, then that obligation to be but it is appro- void, or else to remain in full force and virtue ;") which said writing obligatory, at the time of the death of the said A. A. was, and still is in full force, not released, cancelled, annulled, or in anywise paid or satisfied; and the said D. further says, that he the said D. hath fully administered all and singular the goods and chattels which were of the said A. A. at the time of his decease, and which have come to the hands of him the said D. to be administered, except goods and chattels to the value of $5; and that he the said D. hath not, nor on the day of the commencement of this action, or at any time since, had any goods or chattels, which were of the said A. A. at the time of his death, in his hands to be administered, except the said goods and chattels to the value of the said $5; which are not sufficient to satisfy the said debt so due and owing on the said writing obligatory, and which are subject and liable to the payment and satisfaction thereof; and this, &c.: Wherefore, &c. 3 Went. 246. added. 5 T. R. 309. J. WALLACE. NOTE.-To Assumpsit against an executrix, she pleaded, (after pleading four judgments recovered against her as executrix,)" that the testator in his lifetime, on &c., by a writing obligatory, became bound to A. A. in $2800, which was made and executed by B. B., the testator, to A. A. (among other things) for the purpose of indemnifying A. A. from and against a certain OUTSTANDother writing obligatory, made by the said A. A. jointly, and together with ING DEBTS. the said B. B. the testator, but for the sole and proper debt of the said B. B. the testator, to C. C. for $800; and which sum of $800 became, and was due and payable in the life-time of the said B. B. the testator, and at the time of his death, remained, and was, and still is unpaid; and that the said writing obligatory is still in force; that upon the death of the said B. B. the testator, whom the said A. A. survived, to wit, on &c., and also before the commencement of this action, the said writing obligatory, so given by the said B. B. the testator, to the said A. A., became, and was, and still is forfeited, and the money therein contained is still unpaid; that the said D. hath fully administered &c., except goods &c., to the value of $1545, which are not sufficient to satisfy the said several sums, due upon the said several judgments and the said writing obligatory to the said A. A., and which are subject and liable to the satisfaction thereof." On demurrer it was objected, that the plea did not show that A. A. was damnified, nor how the bond was forfeited; nor how the defendant was liable to an action at the suit of A. A.; and that the allegation of the condition, "among other things," was insufficient, but the Court gave judgment for the defendant; and the plea was adjudged good. Cox v. Joseph, 5 T. R. 307. The bond is paid, but kept on foot by fraud. ther paid in the REPLICATION. And the plaintiffs say, (precludi non,) because, Replication. protesting that the said plea, and the matter therein contained, in manner and form as the same are above pleaded, are not sufficient in law to bar them, the plaintiffs, from having and maintaining their aforesaid action against the said D.; for replication in this behalf, (a) Though it they say, that after the making of the said writing obligatory, in the is not stated in said plea alleged to have been made by the said A. A. to the said the plea, wheB. B. in said plea mentioned, and before the pleading of said plea, life-time of A. (a) to wit, on &c., the said writing obligatory to the said B. B., and A. or not, yet money thereon due and payable, was fully paid off, discharged, Mr. Lawes and satisfied unto him the said B. B. to wit, at &c.; but the plain- replication suftiffs in fact further say, that notwithstanding such payment and dis- ficiently cercharge of the said writing obligatory to the said B. B. as aforesaid, tain to meet the said writing obligatory is still kept on foot uncancelled, by the any objection. fraud and covin of the said D. with intent to defraud them, the 244. plaintiffs, of their damages by them sustained, on occasion of the premises in their said declaration mentioned; and this &c.: Wherefore, &c. 3 Went. 243, 244. N. LAWES. all thought the See 3 Went. not kept on REJOINDER. And the said D. protesting that the said writing Rejoinder. obligatory, at the time of the death of said A. A. was, and still is in The bond is full force, not released, cancelled, annulled, or in anywise paid or foot by fraud. satisfied, says, that the said writing obligatory is not kept on foot uncancelled by the fraud and covin of the said D. in manner and form as the plaintiff hath above in his replication alleged; and of this he puts himself, &c. NOTES. In the case of the Bank of England v. Morice, (2 Str. 1028; S. C. Cas. Temp. Hard. 219,) where the executor pleaded several bonds due from the testator, and set out the sums in the conditions of them, the Court were of opinion, that at law, the penalties are the debts, as to those bonds, where the days of payment are past, and the bonds of course forfeited; and on the issue of what is due, must cover so much of the assets. But with regard to those bonds, where the days of payment were not yet come, the sums in the condition were the debts, and the assets can only be recovered for them; for the executor may save the penalty by payment of the less sums at the times specified in the condition; and if he do not, it will be a devastavit in him, if he have assets. 1 Saund. 333. Note (7.) So that, "if OUTSTAND- the bond be forfeited, the party may either plead the penalty, as the debt, or the sum really due; though the Court always recommend the latter. If it be not forfeited, he can only plead the sum due." Per Buller, 5 T. R. 309. When the judgments or debts pleaded by the executor, are upon penalties, it seems the right way of replying is, to say, that the creditor would have accepted the less sums, but the defendant either would not pay, or had paid them; but kept the judgments or bonds on foot by fraud and covin; and the plaintiff, on issue joined thereon, may give in evidence such matter as will serve to avoid the penalties. For, if he replies generally, that the judgments were for less sums, and the defendant has assets above what will satisfy them on that issue, that he has not, the defendant has a right to insist on the penalties as the debts. 3 Lev. 368; 1 Lutw. 450. See Precedents. Lilly, Ent. 59; Co. Ent. 152; Winch. 179, 245; Lib. Plac. 158, pl. 103, 104, 105; Lilly, Ent. 120, 121, 159. But the conclusion to the country in Lilly, Ent. 159, is held improper. 1 Ld. Raym. 263; 1 Saund. 338. See 1 Saund. 334, notis. Plead. Ass. 373. It is usual, in pleas of this kind, for the plaintiff, (if there are many bonds outstanding, or judgments unsatisfied, pleaded by executor,) to reply particularly to each bond and judgment in his replication. This would undoubtedly, according to the general rules of pleading, be double, if it be true, that by avoiding any one judgment or debt in the plea, the plaintiff would be entitled to recover judgment de bonis testatoris; and by replying to each, he tenders several issues, where one is sufficient to defeat the defendant's plea. But this is an anomalous case, in which the plaintiff is allowed to reply to every judgment, or other debt, or payment pleaded, or some, or one of them, omitting the rest, without being guilty of duplicity; but the better way seems to be, to answer only such judgment as the plaintiff knows to be obtained by fraud. 8 Rep. 132; Co. Ent. 152; 2 Saund. 49, 50; 1 Lev. 281; 1 Ld. Raym. 263; 1 Saund, 337 b. Notis. ADDITIONAL NOTE. ON PLEADINGS BY EXECUTORS AND ADMINISTRATORS. Under the statutes in this Commonwealth, the pleadings of administrators and executors are few and simple. As an executor or administrator represents the deceased, he may avail himself of any defence, which the deceased might have had; and in cases, where the deceased would have been obliged to plead specially, the executor, under Mass. Stat. 1783, ch. 38, § 8, may plead the general issue, and give the special matter in evidence. Besides these defences, however, an executor may plead, that the action is not brought within four years from the time of notice of administration, under the Stat. 1788, ch. 66, which will be a good defence, although it may be within six years after the cause of action accrued. And this defence, it seems, the administrator or executor is not at liberty to waive; for, if in consequence of a negligence on his part to plead this statute, a judgment should be obtained, the execution could not be levied on the estate of the deceased, in prejudice of heirs, devisees, or purchasers; but he himself, perhaps, might be liable to answer it out of his own estate. See the opinion of Jackson J. (15 Mass. R. 62.) And here it may not be amiss to observe, that, even if real estate not inventoried, is discovered after the four years, still the creditors can maintain no action against the executor or administrator. Their course should be to apply to him, to administer upon it, and upon refusal, should apply to the Judge of Probate for his removal from the trust. See 15 Mass. R. 143. And since no action can be maintained against an heir or devisee, while the right to take out administration continues open, he should procure either himself, or some other to be appointed. 12 Mass. R. 393. Where the estate is insolvent, the executor or administrator may OUTSTANDplead the insolvency, as a bar to any action, brought against him after ING DEBTS. the insolvency is declared. And, if the insolvency should be declared after action brought, he may avail himself of it as a plea since the last continuance; and if judgment has been recovered against the administrator, and afterwards a scire facias is brought on the judgment, suggesting waste, it is a good plea in bar, that since the recovery of the judgment, the estate has been declared insolvent. 12 Mass. R. 573; 15 Mass. R. 323. But, if the action is brought for funeral charges, or the expenses of the deceased in his last sickness, &c. which, under the Stat. 1782, ch. 2, 1, are to be paid without deduction, the insolvency of the estate, it is supposed, would be no bar, without showing an absolute deficiency of assets. If, after the administrator has represented the estate as insolvent, and a commission of insolvency is awarded, an action is brought against him, he may abate the writ by pleading the insolvency, and admitting the debt. But if he disputes the demand, the plaintiff may have judgment, in order to ascertain the amount, but he cannot have execution. Ibid. An administrator sued as executor, or vice versa, may plead the mistake in abatement; but an executor cannot safely plead never administrator in bar, because it seems every executor is an administrator, although the converse does not hold. See 1 Salk. 296; 5 Mod. 145. Besides, the mistake can be of no great consequence, since a judgment in one capacity, with proper averments, will be a bar to another action for the same cause. Cro. Eliz. 647. If after action commenced, either of the original parties dies, and an administrator has been made a party, and then the other original party dies, pending the action, his administrator also may become a party; and if he neglects it, judgment will be entered against the estate under his administration. 4 Mass. R. 620. Where an administrator, appointed in Massachusetts, commenced an action against a debtor of the intestate, residing in Connecticut, on a promissory note given by him to the intestate, and the debtor pleaded that he had been appointed administrator of the intestate in Connecticut, and had given bonds, and had included the debt in his inventory there &c., the plea was held good. 11 Mass. R. 256. Since otherwise he might be held to pay the amount twice; once here, and once in Connecticut, where his sureties also would be held. Ibid. If a mere stranger is sued as executor, he can plead no other plea than never executor, without incurring a risk of becoming executor de son tort. Thus if the defendant pleads fully administered, he admits himself to be executor. Mod. 396. The law in relation to executors de son tort, does not seem to be settled in this Commonwealth. In England, if one is sued as executor de son tort, by a creditor, he may plead, fully administered, and show a payment of just debts in evidence. But if the action is by a rightful administrator or executor, he cannot plead so. See Keb. 285; Carth. 104, cited in Vin. Abr. Executors. (F. a.) 4. And the reason assigned is, that no man shall intrude himself into the office of another. An executor de son tort cannot retain for his own debt. Mod. 208; 1 Saund. 265, n. 2. If after action commenced against him, an executor de son tort takes out administration, it will purge the tort, but shall not abate the writ. 15 Mass. R. 323. OUTSTAND ING DEBTS. In England, if judgment is recovered against an executor de son tort, by a creditor, though he may take advantage of that judgment in an action by another creditor, yet it seems it will not avail him in an action by the rightful executor or administrator. However, so much as such creditor was justly entitled to, from the estate of the deceased, will be allowed him in the damages. See the opinion of Holt C. J., 12 Mod. 471. See also the opinion of Parsons C. J., 280. For further observations respecting the mode of pleading the various pleas by executors &c., see Lawes on Assumpsit, 584. See also post, Scire Facias against Executors. Plea. Partition fence built on SUPPLEMENTARY. Pleadings in an Action on the Stat. regulating Fences, 1785, ch. 52. PLEA. And for a further plea in this behalf, by leave of the Court the dft's. land. here pleaded, the said D. says, that the said plaintiff ought not to have or maintain his action aforesaid thereof against him, because he says, that although true it is, that he and the said plaintiff, on &c., were owners and proprietors in severalty of two tracts of land lying in N. aforesaid, adjoining to each other, and commonly called &c., and had before that time occupied the same tracts in common, without a partition fence between them, yet protesting that said E. F. and G. H., fence-viewers of said N., did not make a division of the partition line between the plaintiff's and said D.'s said tracts of land, nor assign to each of them his share thereof, as the plaintiff in his declaration hath alleged, the said D. saith, that the fence, in the plaintiff's declaration supposed to have been built by him, as and for the share of the partition fence between said tracts, in said declaration supposed to have been assigned to said D. by said fenceviewers, was, without his knowledge or consent, built and placed on his own land, and not on the divisional or boundary line between said tracts; and this he is ready to verify: Wherefore he prays judgment, if the plaintiff, his action aforesaid thereof against him, ought to have or maintain, and for his costs. PRESCOTT. Replication, REPLICATION. And the plaintiff saith, (precludi non,) because that the fence he says, that the said plaintiff did build the said partition fence between the said tracts of land, according to the assignment in his declaration mentioned, upon the divisional or boundary line between the said tracts of land, to wit, at N. aforesaid; and of this he puts himself on the country. PUTNAM. was built on the boundary &c. |