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3. What Executors are to be made Defendants.-It has been observed, that in actions brought by executors, it is necessary that, where there are two or more, they should all join, whether they administer or not, if one of them has proved the will. But this is not necessary when actions are brought against themi; for the mere circumstance of a person being named executor does not compel the plaintiff to make him a defendant, unless he has administered. Hence, where executors, defendants, plead in abatement, that there are other executors not named, they must addk, that the executors not named have administered; for the plaintiff is bound to take notice of such executors only as have administered. Although executors cannot sever in declaring, yet they may in pleading. Hence, although infant executors may sue by attorney with executors of full agel, because those of full age may appoint an attorney for those within age, yet they must defend by guardian. If any of the executors diem, actions must be brought, not against the surviving executors and executors of deceased executors, but against surviving executors only. If there are two or more administrators, they must all be made defendants". An executor de son tort must be declared against as a rightful executor.

IX. Of the Pleadings, and herein of the Right of Retainer

Evidence-Judgment-Costs.

An executor may plead the same plea in barp, that his testator might have pleaded ; as, in an action of assumpsit he may plead, that his testator did not undertake or promise ; or in covenant, or debt on bond, that it is not the deed of the testator. So an executor may plead in bar, that he has fully administered all the goods and chattels which were of the deceased at the time of his death. This plea is termed a plea of plene administravit. In like manner an executor may plead an outstanding debt, as a judgment, in which plea it is not necessary for the executor to aver that the judgment was had for a true and just debt9; for this shall be presumed. So where an executor pleaded' that his testator entered into a bond conditioned for the payment of a sum of money at a day past, beyond which he had not assets; it was holden sufficient, although it was not averred that the bond was entered into for a true and just debt ; for it shall be intended that it was. And the same intendment shall be made, where an executor or administrator pleads a bond debt due to himself and retainers. The ancient way of pleading an outstanding bond was to set forth the bond only; but the modern way is to set forth the condition also. When the day of paymentt, mentioned in the condition of the bond, is past in the life-time of the testator, the penalty is the legal debt; and although an executor, in pleading it as an outstanding debt, sets forth the condition of the bond, yet that will not deprive him of the advantage of covering the assets to the amount of the penalty. But when the day of payment is not arrived at the death of the testator, if the executor sets forth the condition, the assets can be covered only to the amount of the sum mentioned in the condition ; for the force of the bond is suspended until the condition is broken. To an action of debt on bond for £3004 against defendant, as executor, he pleaded that the testator was bound in a statute for the same sum, and that he had assets to the amount of £80 only, to satisfy that statute, which remained yet in force and not paid. On demurrer, it was objected, that it was not averred in the plea, that the statute was made for debt, and that the debt was not satisfied: for if it were for the performance of covenants, it was not reasonable that it should be a bar to deht on a bond already due, when, perhaps, the covenants would never be broken (36), in which case there would not be any cause of suit or extent thereon. But the court resolved, that the plea was good; for it was averred that the statute was in force, and the money not paid, it was good enough prima facie ; and it should be intended to be made for a just debt, until the contrary was shown. An executor?

i Bro. Exors. pl. 69.
k Swallow v. Emberson, 1 Lev. 161.
1 Frescobaldi v. Kinaston, Str. 783.

Fitz. Ab. Exor. 22

m 4 Leon. 193. Bro. Exors. 99. Fitz.

Ab. Exor. 22.
n Reg. 140. a. b.
o Alexander v. Lane, Yelv. 137.
p Com. Dig. Pleader. (2 D. 8.)

9 1 Lev. 200.
r Lake v. Raw, Carth. 8.
8 Picard v. Brown, 6 T. R. 550.
t Bank of England v. Morice, Str.

1028. Hardw. C. J. delivering the

opinion of the court.
u Phillips v. Echard, Cro. Jac. 8.
x Palmer v. Lawson, I Lev. 200.

(36) It was agreed by Fenner, Gawdy, and Yelverton, Justices, that a statute for performance of covenants was not a bar in debt on bond, if none of the covenants were broken.

may plead an outstanding judgment recovered in an action of debt on a simple contract against the executor, although the executor might have reversed such judgment, since debt cannot be maintained against an executor on a simple contract. If an action be brought against several administratorsy, they may plead an outstanding judgment recovered against one of the defendants; for a recovery against one administrator shall bind him and his companions. After the commencement of an action, an executor cannot pay another creditor before such other creditor has recovered judgment, but the executor may confess a judgment for the damages laid in the declaration, without ascertaining those damages by writ of inquiry, provided they do not exceed the real debt. If they do, the plaintiff may reply that such judgment was not for a true and just debt. An executor may confess a judgment to a creditor in equal degree with the plaintiff, pending the action, and plead it in bara. But if a plea of judgment, recovered on a simple contract, be pleaded by an executor to a debt on bond, it must be averred, that such recovery was had before notice of the bond debtb.

An executor may plead, puis darrein continuance', unreversed judgments on simple contract debts of the testator, recovered against the executor in suits commenced since he pleaded the general issue in bar in the principal case; and though he might have demurred to such actions, he is not bound so to dod. Where judgment was given against A. in the Common Pleas, who afterwards entered into a statute and died; and his administrator brought error on the judgment, and, pending that suit, paid the statute, and afterwards the judgment was affirmed; upon a sci. fa. to have execution thereon, the administrator pleaded payment of the statute, beyond which he had not assets. It was adjudged a good plea, because at the time of the execution of the statute, the administrator could not plead the judgment in C. P., because it was doubtful whether it would be affirmed or note. To a plea of an outstanding judgment, the plaintiff may reply, that the judgment was obtained by fraud and covin. And in a case where an executor, defendant, pleaded two outstanding judgments, to each of which the plaintiff replied fraud, and traversed that the debts recovered were due for just debtsf:

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y Further v. Further, Cro. Eliz. (471.) c As to pleading a plea puis darrein z Waring v. Danvers, 1 P. Wms. 295. continuance, see R. G. H. T. 4 W. 10 Mod. 496. 3 P. Wms. 401.

4. No. 2. ante, p. 138. a Waring v. Danvers, 1 P. Wms. 295. d Prince v. Nicholson, 5 Taunt. 665.

Morrice v. Bank of England, Ca. e Rede v. Berelocke, Yelv. 29.
Temp. Talb. 225. S. P.

f Trethewy v. Ackland, 2 Saund. 49. b Sawyer v. Mercer, 1 T. R. 690.

the replication was holden good on a special demurrer, the court observing, that the plaintiff might traverse the special matter, or rely on the fraud generally at his election. A judgment confessed by an executrix to a creditor of the testator, as well for his own debt as in trust for the debt of many of the creditors, cannot be pleaded in bar to an action brought against her by another creditor of the testator8.

Where the statute of limitationsh is pleaded to an action brought by an executor on a promise made to his testator, the six years are computed from the time when the action first accrued to the testator, and not from the time of proving the will. But where money belonged to the estate of an intestate is received by A. i after the death of the intestate, and more than six years afterwards B. takes out an administration, it seems that the time of limitation must be computed from the day on which the letters of administration were granted; and, consequently, if B., within six years from that day, brings an action for money had and received against A., the statute of limitations will not operate as a bar. In an action by administrator upon a bill of exchange, payable to the intestate but accepted after his death, the statute of limitations begins to run from the time of granting the letters of administration, and not from the time the bills become due, there being no cause of action until there is a party capable of suing. Murray v. East India Company, 5 B. & A. 204. See also Pratt v. Swaine, 8 B. & C. 287. per Bayley, J. “Where letters of administration have been granted, the administrator is entitled to all the rights which the intestate had at the time of his death vested in him ; but no right of action accrues to the administrator, until he has sued out the letters of administration." But by stat. 3 & 4 W. 4. c. 27. s. 6. for the purposes of this act, an administrator claiming the estate or interest of the deceased person, of whose chattels he shall be appointed administrator, shall be deemed to claim as if there had been no interval of time between the death of such deceased, and the grant of the letters of administration.

As to the proper mode in which an executor of an executor should frame his plea, the following case deserves attention: Plaintiff, assignee of lessee for years, sued the defendant as executor of B., executor of A., the lessor in covenant upon the original indenture of lease, for a breach of the covenant for quiet enjoyment of Ak, and since his decease by de

g Tolputt v. Wells, 1 M. & 8. 395. Skinn. 555, S. C. See the record, h Hickman v. Walker, Willes, 27. 4 Mod. 372. i Curry v. Stephenson, Carth. 335. k Wells v. Fydell, 10 East, 315.

fendant. Defendant pleaded, that he had fully administered all the goods of A., the first testator. On demurrer, it was holden, that the plea was bad, inasmuch as it only gave an answer to one part of a case which pointed at two kinds of misapplication of those funds which were liable to the plaintiff's demand. Le Blanc, J. observed, that the defendant might discharge himself in two ways: either by showing that the first executor fully administered all the goods and chattels of A. which came to his hands, and that the defendant, since the death of the first executor has duly administered all that he has received of A.'s assets; or he might shew that he had received no assets of the first executor. But, as the plea now stands, he leaves unanswered every thing respecting the assets of the first testator which came to the hands of his executor, and merely answers as to his own application. Bayley, J. added, that the plaintiff was entitled to recover his debt in either of two events; if the defendant had received assets of the original testator, and had not properly applied them; or if the defendant had received assets of the first executor, and the first executor had received assets of his testator, and had not duly applied them. The defendant has only answered as to one of those events, but the plaintiff may be entitled to satisfaction out of both funds; and, therefore, he is entitled to have the issue so framed, that if any thing be forthcoming to him out of either fund, he may be able to avail himself of it. See further as to pleading the statute of limitations, and statute of set-off, by and against executors, ante, tit. Assumpsit, and tit. Debt.

Of the Right of Retainer.-A lawful executor or administrator', when sued by a creditor of the deceased, may claim a right of retaining the assets in satisfaction of debt due to himself

, provided such debt is equal or superior in degree to that claimed by the creditor. Where an action is brought against a defendant as executor (which is the case, as well where the defendant is charged as rightful executor, as when he is charged as executor de son tort,) and he claims to retain as executor or administrator, he ought to set forth the letters testamentary in, or the letters of administration", in order that it may appear to the court, that he is such a person as is entitled to retain; for an executor de son tort is not so entitledo. But where the plaintiff sues the defendant as administrator, and he claims to retain as administrator,

1 I Keb. 285. 2 Vent. 180. Sty. 337.

Vaughan v. Browne, post. p. 813. m Atkinson v. Rawson, 1 Mod. 208.

n Caverly v. Ellison, T. Jones, 23.
o Coulter's case, 5 Rep. 30. Yelv. 138.

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