verdia by the 16 & 17 Car. 2. cap. 8. 1 Salk. 37. pl. 5. Hill. defendant 12 W. 3. B. R. Gidley v. Williams.

by pleading in chief had

cured all the faults in the declaration, and judgment for the plaintiff, which was affirmed on writ of error; and without doubt if it had not been aided by the plea, yet it would have been well by the ftatute of 16 & 17 Car. 2. Ld. Raym. Rep. 634. S. C. and judgment for the plaintiff, but per tot. Cur. the want of fhewing that the administration was granted would have been ill on demurrer.

19. In a fci. fac. by adminiftrator, he muft produce his letters of adminiftration as well in this court as in C. B. and though the adminifiration be committed by the ordinary, yet when there is an appeal from the delegates, the entry is always that it is committed per Dom. Reg, &c. 2 Keb. 47. pl. 104. Pafch. 18 Car. 2. B. R. Holt v. Len

thall.

20. An administrator declared on an administration committed to him by R. B. archdeacon of Norfolk, and did not fay loci iftius ordinarium, nor cui de jure pertinet to grant it, and held good, as well as in the cafe of a bifhop. For the archdeacon is oculus epifcopi. And per Twifden a declaration is good without faying loci illius ordinarium, because he produces the letters of adminiftration, but otherwife in a bar. Lev. 193. Mich. 18 Car. 2. B. R. Dring v. Respass.

8. S. C. &

S.

Sid 302. pl. P. held accordingly, per Cur. S. P. by Bacon J.

For the law takes

notice of an archdeacon

being a publick ordinary. Sty. 54. Mich. 23 Car. B. R. in cafe of Burnet v. Bird.

21. An adminiftrator brought a bill to difcover and have an account of the inteftate's eftate; the defendant pleaded that the supposed intestate made a nuncupative will, and another perfon executor, whom he named in his plea, to whom only he was accountable, and not to [328] the plaintiff or any other, but decreed, that though there was such

a nuncupative will, yet it was not pleadable against an adminiftrator before it was proved, and fo the plea was over-ruled. Chan. Cafes, 192. Hill. 22 & 23 Car. 2. Verhorn v. Brewin.

cited per

22. In debt by an administrator he declared on an administration Sid. 302. in granted per Carolum Regem, &c. without faying debito modo, &c. ad- pl. 8. S. P. judged good; because the king has univerfal jurifdiction here. Allen, 53. Pafch. 24 Car. B. R. Hobfon v. Wills.

23. The defendant fet forth, that administration was granted to her by the commissary of the bishop of Litchfield, legitime conflitutum, and held good; for in fuch cafe it is the fame thing as if granted by the bishop himself. And the difference is between a peculiar jurifdiction and the authority of the chancellor or commiffary of the bishop. Lutw. 9. Mich. 36 Car. 2. Walford v. Smith.

24. In covenant brought by a leffor against the administrator of Leffee, exception was taken to the declaration, because it did not allege by whom the letters of adminiftration were granted to the defendant, and what authority the grantor had. Sed non allocatur; for the plaintiff who is a stranger need not fhew it, though an administrator who is a plaintiff ought to fhew it. Lutw. 297. 301. Hill. 1 & 2 Jac. 2. Knight v. Greenes.

25. An administrator declared on an administration de bonis non granted to him by the steward of the manor of Mansfield, &c. cui commiffio adminiftrationis illius de jure pertinuit, and concludes with

a pro

Curr

have been

held accordingly.

a profert Iric in curia, and this was held good. Lutw. 406. 408. Hill. 1 & 2 Jac. 2. Burbridge v. Clayton.

26. The plaintiff entitles himself as adminiftrator, the defendant pleads the plaintiff is not adminiftrator; it was objected this is a negative plea. Per Cur. allow the plea; it is a good plea in abatement at law. Vern. 473. Mich. 1687. Winn v. Fletcher.

27. An action against an administrator, and not fhewn in the declaration that letters of adminiftration were committed to him; and this was held by the Court incurable. For though they need not fhew by what authority they were committed, yet it is neceffary to fet forth that administration was committed to charge him with the action. Otherwife of an executor; it is not neceflary to bew be proved the will, because an action lies against him before probate. 2 Vent. 84. Mich. 1 W. & M. in C. B. Bracton v. Lifter. 28. Adminiftrator brought debt for rent due in the life of the inteftate, and ferved that adminiftration was granted to him by the official of the prebendary of Brampton et peculiaris jurifdictionis. After verdict it was moved, that it being a peculiar, the plaintiff ought to have fhewn by what authority; to which it was anfwered that it is ill on demurrer, but it is now aided by verdict. Adjudged for the by the ver- plaintiff by three judges, Holt dubitante. Comb. 196. Trin. 4 W. & M. in B. R. Mafon v. Hanson.

Show. 355. S. C. and judgment

affirmed for the plaintiff.

-4 Mod. 133. S. C. it is cured

diet fince

the ftatute

17 Car. 2. and it was held before that statute that in an action by an adminiftrator omitting profert hic in curia literas adminiftrationis was good after a verdict, and fo judgment was affirmed.

29. Trover was brought by an adminiftrator, and upon not guilty pleaded, verdict was for the plaintiff, and it was moved in arreft of judgment, because letters of adminiftration were not fhewn to be granted by the ordinary or his official, or other perfon having authority from him, but only per A. B. doctorem per epifcopum Ciccftrenfem legitime conflitutum, i.e. the bishop had made him a [329] doctor, but he does not fay that he was official, or any other officer of the bishop, as archdeacon, &c. non allocatur; for though he had not thewn any adminiftration at all, yet it is good after a verdict as it is ruled, Sty. 262. and it was adjudged for the plaintiff. Skin. 551. Mich. 6 W. & M. in B. R. Cheeseborough v. Linton.

Comyna's

Rep. 17. pl.

9. True

lock's cafe.

30. Debt on a bond as adminiftrator; the plaintiff in his count fays that adminiftration was committed to him per J. S. official' decani Sarum loci illius ordinar legitime conflitut' cui adminiftratio de jure pertinuit, without faying ad tunc pertimuit; he does not fay how conftitut', and held good notwithstanding. 12 Mod. 100. Mich、 as the plain- 8 W. 3. Truelock v. Hartfield,

S. C. and held good

inafmuch

tiff fet forth

that administration was granted by the official of the dean, to whom of right granting administration, c. belonged.

31. Want of bewing by whom adminiftration was committed is naught upon demurrer; for it might be a peculiar, and then it must be averred, cui adminiftrationis commiffio de jure pertinuit. And there is good reafon why it fhould be fet forth by whom adminiftration was committed; for the defendant may conteft the right

of the perfon granting, and may plead that adminiftration was granted to another, or that there were bona notabilia. 1 Salk. 38. pl. 5. Hill. 12 W. 3. B. R. the first refolution in cafe of Gidley v. Williams.

32. Debt by adminiftrator cui adminiftratio debito modo commissa fuit; defendant pleads over; per Cur. this had been bad if de murred unto, but it is now helped by your pleading over, for you thereby admit he has a right of fuit, and is adminiftrator. 12 Mod. 537. Trin. 13 W. 3. Hall v. Bond.

33. Trover by an adminiftrator upon a poffeffion and lofs by the inteftate, the defendant cannot give in evidence, that there is an executor 2 Ld. Raym. Rep. 824. Mich. 1 Ann. Marsfield v. Marfh.

34. Plaintiff declared upon an adminiftration granted to him by the official of a peculiar, and that debito modo commiffa fuit. Holt Ch. J. Gould and Powis held the declaration good, and that the debito modo was a fufficient averment; and Holt Ch. J. faid that there was no peculiar but had the power of granting adminiftration, and that this was a needlefs exactnefs, not fo much regarded lately as it had been formerly, when it was thought not enough even to fhew an adminiftration committed by a bithop, without averring that there were nulla bona notabilia; and judgment for the plaintiff, Powell J. diffentiente; and afterwards affirmed in Cam. Scacc. per tot. Cur. 1 Salk. 40. pl. 10. Trin. 3 Ann. B. R. and 4 Ann. in Cam. Scacc. Denham v. Stephenson.

35. Where one grants administration virtute officii the plaintiff need not aver his authority; but otherwise it is where it is by special commiffion. I Salk. 41. in S. C.

36. In action against adminiftrator it was not faid cui adminiftratio commiffa fuit, whereupon was a fpecial demurrer, and to prove it neceffary the cafe of Wade and Atkinfon, 2 Cro. was cited. Likewife an opinion to this purpose, in 1 Syd. 228. and a case in 2 Vent. 84. where this was directly adjudged. But the Court faid, that the declaration, charging the defendant as adminifrator, is the very fame in common fenfe, as if it had faid, cui adminiftratio, &c. They faid too, that one part of the cafe in 2 Cro. had been over-ruled feveral times; and therefore this part of it was of lefs authority. It is true, they faid there was fuch an opinion in Syd. And as to the cafe in Ven. the counsel gave an anfwer to that; for they faid, that that was a cafe in the Common Pleas, and there the declaration is, that the plaintiff queritur, quod, &c. fuch a one died inteftate, and in fuch cafe, therefore, [330] you must aver, that adminiftration was committed to the defendant to entitle you to your action; but in our cafe it is queritur de the defendant adminiftrator, and that is certainly good. Accordingly the Court gave judgment for the plaintiff. Barnard. Rep. 29, 30. Mich. 1 Geo. 2. in B. R. Holiday v. Fletcher.

Br. Double,

pl. 69. cites 6 E. 4. 12.

34. S. C.

(Z. a. 6) Pleadings in Actions against Executor or Adminiftrator.

I.

DEBT

EBT is brought against two as executors. It is a good plea to the writ that they are executors, and not adminiftrators. Br. Executors, pl. 39. cites 50 E. 3. 9.

2. Where writ is brought against two as executors, where the one is not executor, and he confeffes the action, and the other pleads non eft factum, the true executor fhall fay, that he who confeffed was never executor; per Littleton; but Chocke contra. But if the deceafed's goods are put in execution, the true executor fhall have writ of trefpafs. Br. Executor, pl. 88. cites 9 E. 4. 14.

3. Where the teftator pleads in bar, and dies, and refummons is brought against the executors of the defendant, they cannot plead to the writ, unless it be matter coming of younger time, as a releafe, &c. because their teftator has affirmed the writ before; quod nota. Br. Executor, pl. 82. cites 24 E. 3. 25, 26. 47, 48.

4. Recordare by R. executor of the teftament of J. B. against C. de equo fuo capto, and did not fay, equo teftatoris, and yet well; and to fee that executors fhall call the goods of their teflator, which they had once in their poffeffion, bona fua. Br. Executors, pl. 84cites 24 E. 3. 35.

5. Wafle against an executor, and did not count of whofe leafe the executor held, and yet well; for he reprefents the estate of the teftator. Br. Executors, pl. 140. cites 38 E. 3. 18.

6. And because the writ was against J. as executor of the leffee, where he was executor of the executor of the teftator, the writ was abated upon exception thereof. Ibid.

7. In debt adminiftrator shall be fued by the name of administrator, and not by name of executor, and adminiftrator fhall have action, &c. and the defendant pleaded to the writ, that the administration was bailed to him by one K. and the other faid that K. did not adminifter but as fervant to the defendant; but the iffue was, whether the adminiftration was bailed to them or not; for if it was to both, then the adminiftration fhall be faid by virtue of the commiffion, and not as fervant of the other. Br. Adminiftrator, pl. 23. cites 38 E. 3. 20, 21.

8. Debt by adminiftrator, and fhewed the letters of adminiflration as he ought, and that they were committed by the commissary of the bishop; and exception was taken, because it was not committed by the bishop himself, who is immediate officer to the court; & non allocatur; but the commiffion awarded good; contra of certification of baftardy, or of excommunication, for this ought to be by the bishop himself; note a diverfity. Br. Administrator, pl. 18. cites 1 H. 4. 64.

I

9. Debt against two executors, the one came at the pluries capias, and pleaded plene adminiftravit at W. prift; and the other e contra ; and after came the other by exigent and pleaded to the writ, because three others were executors with them who have adminiftered, and are

not

net named; judgment of the writ; and the plaintiff replied that the two are fole executors, and the defendant pleaded this matter in arreft of the first inqueft upon the firft iffue, for by the replication to the fecond plea, he has waived the advantage of the firft plea, where this was fufficient for all by reafon of the ftatute, which wills that he who first comes by diftrefs fhall answer; per Hank. and the opinion of the Court. Br. Executor, pl. 46. cites 7 H. 4. 12.

10. Debt against executors upon deed of their teftator, who pleaded quod non admin' ut execut' aliqua bona quæ fuerunt teftatoris tempore mortis fuæ, and found against them; and by the opinion of the Court this is no plea, for it may be that they received debts due to their teftator after his death, or retook goods which were taken by trefpaffors before his death, or otherwife recovered damages for them, but because it was found against them, therefore the verdict has made the plea good; per opinionem. Br. Executor, pl. 50. cites 7 H. 4. 39.

11. Debt against administrator, and did not shew that the adminiftration was committed to him by the ordinary: judgment; and by the best opinion the writ is good; and that if it be otherwife, the other may plead it. Br. Adminiftrator, pl. 19. cites 11 H. 4. 72. 12. There was no action against adminiftrator at common law, but this is given by the ftatute; per Hank. Br. Administrator, pl. 19. cites 11 H. 4. 72.

13. Debt by J. as adminiftrator of W. P. and counted of a duty due to himself, and good, by the beft opinion. Br. Administrator, pl. 21. cites 9 H. 5. 5.

14. Trefpafs of a house broken, and goods carried away; the defendant faid that the plaintiff's husband was feifed in fee of the house, and poffeffed of the goods, and made the defendant his executor, and died, and the defendant found the door open, and entered, and took the goods, and the plaintiff, fuppofing that she had been executor, took them, &c. and this was admitted good colour, and the plea was awarded good per Cur. notwithstanding that the plaintiff brought the action of her goods, and the defendant juftified of the goods of the teflator, per quod the plaintiff faid that the teftator devifed them to her, and the defendant delivered them to her after the teftator's death, and after took them, and the defendant faid, proteftando, that they were not devifed, and pro placito that he did not deliver them, and fo to iffue. Br. Trefpafs, pl. 9. cites 2 H. 6. 15.

15. Debt against two adminiftrators, at the diftringas the one came, and the other not; and the opinion of the Court was, that he fhould anfwer alone, notwithstanding that the other did not come; for though the ftatute fays, that of executors, he who first comes fhall answer, yet adminiftrators are taken by the equity; quod nota. Br. Administrator, pl. 4. cites 3 H. 6. 14.

16. Debt against one as executor. He faid that the deceafed died inteftate, and the ordinary committed the adminiftration to him, and to two others who are alive, not named; judgment of the writ. Per Newton, you say, that they have administered. Markham, I do

not