(as is pretended) for he might have taken iffue that all were continued by fraud, or elfe he might have fingled out one of the judgments, and taken ifiue upon that alone. The plaintiff seeing the opinion of the Court, prayed leave to discontinue, which was granted.

78. The plaintiff in Cur. Pal. counted against the defendant that he was indebted to the plaintiff as adminiftrator to F. B. in vol. pro tant' denar fum' ejufdem quer as administrator of F. B. per ipfum def' ad ufum ipfius quer', as adminiftrator of F. B. habit & recept'. Upon non affumpfit pleaded, a verdict and judgment was pro quer', and a writ of error was brought in B. R. and error asfigned that the plaint was general, and no mention of F. B. in the plaint, fo there is a variance between the plaint and the declaration, and for this error the judgment was reverfed. Skin. 386, Mich. W. & M. in B. R. Neath v. Reeves.

5

79. Defendant muft not only prove payment without abatement or collufion, as difcharge of bonds, but also that there was a real debt for which the creditor's oath fufficeth, or if evidence be given that the teftator acknowledged fo much due by bond that may be 341] allowed, for that would have been good evidence against himself, Cumb. 352. per Holt Ch. J. Trin. 7 W. 3. Anon.

Salk.309.

pl.13. S.C.

ingly.

80. If an action be brought against an administrator, the plaintiff need not aver in his declaration that administration was committed to the defendant, contra 2 Vent. 84. BRACTON V. LISTER, et nota bene, for per Mather, in an anonymous cafe in C. B. Mich. 98. it was held to be ill upon demurrer, but cured by the defendant's pleading, whereby he admitted himself a lawful and rightful adminiftrator; per Holt Ch. J. Comb. 465. Hill. 10 W. 3. B. R, Sparkes v. Crofts.

81. Debt for rent upon a parol leafe, defendant pleaded fuch a debt upon obligation ultra quod he had no affets, for being in equali gradu he could not plead the one against the other till judgment or payment of the money, but otherwife if one of them be of higher nature than the other, and there is no diversity between debt in the realty by specialty, and in realty without fpecialty as to equality of degrees. 12 Mod. 291. Pafch. 11 W. 3. in cafe of Cage v, Acton.

82. Covenant was brought against the adminiftrator of an affignee held accord- of a term for years, and the declaration againft him was as affignee of the left, though he was only the adminiftrator of the affignee, and adjudged that the action was well brought against the adminiftrator by the name of affignee. Carth. 519. Pafch. 12 W. 3. B. R. Tilney v. Norris.

J.d. Raym. Rep. 553. S. C. ad

judged accordingly.

83. If executor fuffers judgment to go against him by default, it is an admiffion of affets, and the fheriff may on the fi. fa. return a devaftavit. 12 Mod. 411. Trin. 12 W. 3. Rook v. Sheriff of Salisbury.

84. In an action against an executor or adminiftrator, if he pleads twenty judgments, he confeffes affets for above nineteen of them; and yet they must at their peril plead all the judgments in force against them, for if they fail in one of them, they shall never take advantage of it, for the creditor fhall have judgment

to

to execute when affets come, and if the executor plead not all his judgments, he lofes the right of preferring them, and may be charged in a devaftavit for thofe judgments he has omitted to plead, of which fee a cafe well reported in Hutton; for the pleading of the judgment is a protection of the affets which you have or may have until the judgment be fatisfied, and if one pleads five judgments, and one of them be falfe or fraudulent, you are faddled with the whole debt. Per Holt Ch. J. and Gould J. 12 Mod. 196. Trin. 13 W. 3. Atfield v. Parker.

85. When an executor pleads to a recognizance, he must fet it forth to the Court, that the Court may fee whether it be to be performed or not, but if it be a debt, they only need fay that a judgment was obtained against him in fuch a court, if it be in any of the courts of Westminster, but if it be in any inferior court, they must give it jurifdiction, and fay taliter proceffum fuit, &c. Here the plaintiff had judgment upon the firft exception; per Holt Ch. J. 12 Mod. 613. Hill. 13 W. 3. B. R. in cafe of Ingram v. Foot.

86. Adjudged, that where an executor fuffers judgment to go against him by default upon the writ of inquiry, he fhall not give in evidence want of affets, because he is now cftopped; for he ought to have pleaded plene adminiftravit, or specially what affets he had. 6 Mod. 308. Mich. 3 Ann. B. R. Treile v. Edwards.

87. A fci. fa. quare dampna affideri non debent, was sued out against an adminiftratrix upon the new ftatute for preventing of vexatious fuits, &c. upon an interlocutory judgment against the intef zate, to this the pleads judgments recovered against her upon bonds entered into by the inteftate, and adjudged no plea, because the act doth not allow the executor or adminiftrator to say any thing in bar of the action, more than the teftator or inteftate could [342 have had when living, which was only in arreft of judgment, but he fhall not be chargeable with cofts. L. P. R. 43. cites 3 Ann. B. R. Smith's cafe.

88. In debt against an executor for rent incurred after his entry, he cannot plead plene adminiftravit, for that confefes mifapplication, fince no other payment out of the profits can be juftified till the rent be answered. 1 Salk. 317. pl. 25. Trin. 9 Ann. B. R. Buckley v. Pirk.

89. An executor cannot plead riens en fes mains in any cafe but to a feire facias upon a judgment, for he may commit a devaitavit by a release, though he had never the goods in his hands. Trin. 9 Ann. B. R. Peck v. Peck.

90. Executor promised to pay a debt of teftator's on a certain future day, and the action was againit him as executor; but Parker Ch. J. held that the naming him executor was furplufage, because it appears on the face of the record that the demand was a demand upon him upon his own contract. In effect the forbearance is the confideration of this promife, becaufe without forbearance no advantage can be taken of this promife; cites 1 Salk. 117. Yard v. Ellard, and to this opinion the rest of the Court inclined. Sed adjornatur. 10 Mod. 254. Trin. 13 Ann. B. R. Johnson v. Gardiner.

IO

that the

word placie

no

tum is ivum and refers to all the replica

men collec

(Z. a. 7) Replications to Pleas of Judgments, &c. good or not good.

Saund. 338. 1. 1.IN N debt upon bond against an executor, who pleaded feveral pl. 58. S. C. judgments in bar to the action, ultra quod he had not assets; & S. P. held the plaintiff replied, that (placitum) prædict' eft minus fufficiens to bar him, because fatisfaction was acknowledged on fuch an one of the judgments, and that all the other were kept on foot by fraud, and hoc parat' eft verificare, but did not fay, per recordum; and upon demurrer to this replication, it was adjudged for the plaintiff, becaufe hoc parat' eft verificare fhall be taken respectively, and shall be good on a general, though otherwife on a special demurrer, and the word placitum is not but one bar, viz. all the judgments make but one bar, and therefore placitum in the replication anfwers the whole. Sid. 429. pl. 16. Mich. 21 Car. 2. B. R. Hancock v. Prowt.

tions.

2 Saund.48. pl. 7. T:etheway v. Ackland.

S. C. ruled

accordingly,

and rays that

it had been

fo ruled fe

2. If an executor pleads several judgments, the plaintiff may reply diftinctly to each of them, that they were obtained by fraud; or you may fay, feparalia judicia, &c. obtent' per fraudem, but in the last pleading if one is found to be a true debt, the plaintiff must have judgment. Per Twifden. Mod. 33. pl. 79. Hill. 21 & 22 Car. 2, B. R. Anon.

veral times before. The reporter fays, that this is an anomalous cafe, and against the rules of the law, which condemns double pleading; but that it has been allowed in this particular cafe feveral times, and cites 8 Rep. 132, 133. Turner's cafe, and 9 Rep. 108. Merial Trefham's cafe.. 2 Keb. 591. pl. 11. Trethuny v. Ackland, S. C. ruled accordingly.. In affumpfit against an executor, who pleaded a recognizance and feveral judgments against himself, and feveral obligations, and payment of them all, and that he had fully admin ftered, &c. The plaintiff may reply to all or to as many of them as he please; per Curiam. Lev. 281. Hill. 20 & 21 Car. 2. B. R. Jefferies v. Dee.

3. In debt against an executor, he pleaded judgments, and that he had not affets ultra; the plaintiff replied, that the judgments were kept on foot by fraud and covin. The defendant rejoined, [343] that he did not keep them on foot by fraud; and exception was taken, because he did not fay, the judgments or any of them. Vaugh. Ch. J. held the exception good, for the rejoinder is a negative pregnant; and judgment per tot. Cur. for the plaintiff. Cart. 221. Pafch, 23 Car. 2. C. B. Warcupp v. Symonds.

4. Debt against an executor upon a bond of his teftator; the defendant pleaded two judgments had against the teftator, and set them forth, and that he had not affets ultra 40 s. towards fatisfaction. The plaintiff replied, that defendant paid fo much upon the first judgment, and fo much upon the other, yet kept on foot by fraud; and upon demurrer it was infifted that the replication was fo complicated, that no diftinct iffue could be taken upon it, for the plaintiff put them both together, when he alleges they were kept on foot by fraud; but the replication was held good, and the plaintiff had judgment. 2 Mod. 36. Pafch. 27 Car. 2. C. B. Mafon v. Stratton.

5. Debt

5. Debt on bond against an executor, who pleaded a judgment ob- S. C. cited tained against him upon another bond of the teftator, but did not fay Lutw. 450. prout patet per recordum; then he pleaded feveral other judgments, and that plene adminiftravit all the goods of the teftator præterquam 10s. which was charged with the faid judgments, and not fufficient to fatisfy them; the plaintiff replied proteftando, that all the judgments were obtained by fraud, pro placito dicit, that the day of the writ there was no more than 100l. due on all the judgments, and that the defendant then had fufficient affets to fatisfy the judgments, and likewife the debt due to the plaintiff, but that he suffered the judgments to remain in force to defraud him. Upon a demurrer, it was refolved that this general pleading of aflets to fatisfy all the judgments, and the plaint was good; but becaufe no venue was laid where he had affets, fo that it was not triable, it was an incurable fault. 3 Lev. 311. and 368. Trin. W. & M. in C. B. Knighton v. Moreton.

6. Debt against an administrator upon a bill penal of the inteftate, &c. the defendant pleaded in bar feveral judgments obtained against him as administrator upon bonds of the inteftate amounting to 115l. and that he had fully administered præterquam 101. which was not fufficient to difcharge the faid judgments. The plaintiff replied and confeffed the bonds; but that at the time of the judgments obtained, there was but 48. 10s. due on the faid bonds, and fhews to whom, and that it was more than was really due for all the debts and damages on the faid judgments, and that it would be accepted in full discharge thereof, and that the defendant had affets ultra the faid 481. 10s. to fatisfy the plaintiff's debts; and upon demurrer to this replication it was held ill, because nothing was put in iffue; for the allegation of 481. 10 s. would be accepted in full discharge of the judgments is matter which might be given in evidence to prove the fraud; he should have said, that the creditors would have accepted less than the debts due to them, and that the defendant would not pay it, but keep the judgments on foot by fraud. Nelf. Abr. 172. pl. 9. cites 1 Lutw. 445. [Mich. 3 Jac. 2.] Bell v. Bolton.

(Z. a. 8) Pleadings. Ne unques Executor, Ne un- [344] ques administered as Executor, &c.

1. DEBT against an adminiftrator, who faid that the writ ought

to be brought against them by the name of executors, though they are adminiftrators, judgment of the writ, because the ftatute gives writ of debt for adminiftrators, and action of debt was maintainable against them at common law, therefore the writ was awarded good; by which the defendant faid that he was not adminiftrator; nota. Br. Adminiftrator, pl. 10. cites 41 E. 3. 2.

2. In debt against executrix, if the defendant fays, that he is adminiftratrix, &c. and did not adminifter any goods before the letters of adminiftration committed to her, there it fuffices for the other to fay, that fuch a day and year fhe administered certain goods, &c. without fhewing what goods. Br. Pleadings, pl. 22. cites 19 H. 6. 14.

3. Contra

3. Contra where the fays, that she made the funeral with fuck goods, and fhews what, abfque hoc that fhe adminiftered other goods before the letters committed to her, there the plaintiff fhall fay, that fhe adminifiered other goods before, and fall fhew what in certain in this fpecial cafe; contra in the common cafe as above. Ibid.

4. Debt against two as executors, who faid, that the ordinary committed to them the adminiftration, because he died inteftate, and so they ought to be named administrators, and not executors, judgment of the writ; the plaintiff faid, that the teftator made them two executors, and died, and they administered as executors, and pending the writ, the ordinary committed to them the adminiftration, judgment, &c. and the defendants faid that he died inteftate, and the adminiftration was committed as above, before the writ brought, abfque hoc that it was committed pending the writ. Br. Traverse per, &c. pl. 89. cites 21 H. 6. 23.

5. Debt against three executors, two pleaded fully administered, and the third faid, that the teftator died inteftate at B. and the ordinary, by his commiffion, ordained the defendant and two others to receive and levy the goods of the deceafed, and to render account of them to the commiffary, upon request; by which the defendant and the two received divers goods, and thereof have fully accounted before the faid commiffary, judgment, &c. Per Newton, this is no plea without traverfe, no more than if I fay, that the teftator gave to me, by which I took it; this is no plea without traverse, abfque hoc that they adminiftered any goods of the deceafed as executors of the teftament in other manner, and the other faid, that he administered divers goods and chattels at H. as executor. Prift, &c. and the others e contra, and that all was entered for the difficulty of the lay gents, and fo it was. Br. Traverse per, &c. pl. 91. cites 21 H. 6. 27, 28.

6. And in debt against a feme as executrix, who faid, that the baren died inteftate, and she expended certain goods in his fepulture, abfque hoc that the administered as executrix. Br. Ibid. cites 2 H. 6.

7. Debt againft executor, who faid, that the teflator died inteftate, and the ordinary committed the adminiftration to J. N. who fold fuch goods to the defendant, by which he took them, and administered as his proper goods, abfque hoc that he administered other goods; and by fome this amounts but to the general iffue, by which he paffed [345] over, and faid, that he delivered to him certain goods and certain ap.parel, and fhewed what, abfque hoc that he was executor, or adminiftered as executor, &c. Quære. Br. Dette, pl. 189. cites 32 H. 6. 6.

2 Lev. 190. Paich. 29

8. Where the defendant, in debt against him as adminiftrator, fags that he buried the inteftate, or was his feme, and took his neceffary apparel, abfque hoc that he admiriftered in other manner, this is a good traverfe. Br. Traverfe per, &c. pl. 141. cites 37 H.6.27,28. 9. But where he confeffes no administration, there the traverse Shall be abfque hoc that he adminiftered. Note the difference. she Br. Ibid.

10. Debt against an executrix, who pleaded fhe never was executrix, or ever adminiftered as executrix; the plaintiff replied, B.R. Gran- that he had adminiftered as executrix of the teßament, &c. prift. "And

Car. 2.