tor, and af in evidence the defendant shewed letters of administration granted to her well v. Sibof the goods of the deceafed, by which she administered them, and ley execu. that she did not adminifter before. This feems good evidence; for ter imparfhe adminiftered as adminiftrator by authority, and not de fon tort, and yet the might have pleaded this matter in abatement of the writ, in which he was named executrix. Quære. D. 305. b. pl. 61. Mich. 13 & 14 Eliz. Anon. lance pieid ed that the had admini ftration granted to her, abfque hoc that he is executrix, or over adminiftered as executrix. The Court held this to be a plea only in abatement, and therefore not pleadable as here after imparlance, and gave judgment for the plaintiff 1 Salk. 266. pl. 4. Mich. 5 W. & M. in B. R. the S. C. of D. 305. pl. 61. cited and relied upon, but the Court held it no plea in bar. 11. The defendant made confance ut ballivus adminiftratoris of the grantee of a rent, but did not fhew the letters of adminiftration. The Court agreed that this would have been a good exception, but that it being taken after a demurrer, it was relieved by the ftatute of 27 Eliz. of demurrers. 4 Le. 116. pl. 214. Trin. 29 Eliz. C. B. in cafe of Ognell v. Underhill. 12. Administrator durante minore ætate cum teftamento an nexo, plaintiff did not fet forth, that administration was committed to him, but profert hic in curia literas teflamentarias, without faying literas adminiftrationis; this was held ill, and not cured by a verdict. 2 Jo. 193. Pafch. 34 Car. 2. B. R. Lake v. Thacker. 13. Action was brought against E. as executor of J. S. who pleaded he was not the fame perfon named in the will (and in truth J. S. made others executors, and not E.); this upon a demurrer was held an ill plea, because he might be executor de fon tort, though he be not named in the will, and fo may be chargeable, and therefore he ought to have pleaded, that he was not executor, nor ever administered as executor; and judgment for the plaintiff. Sty. 63. Mich. 23 Car. B. R. Seaman v. Edwards. 14. If the defendant pleads that the teflator made one 7. S. executor, who proved the will, &c. he ought to traverfe abfque hoe that he was executor, or ever administered as fuch, for both may be true, and yet the defendant liable as executor de fon tort. 2 Mod. 169. Hill. 28 & 29 Car. 2. C. B. Singleton v. Bawtree. (Z. a. 9) Pleadings in Actions by or againft Executors, &c. Where there must be Monftrans of the Teftament, or Letters of Adminiftration. IN ravishment of ward by three executors, the defendant demanded oyer of the teftament, & non allocatur; but he demanded oyer of the writ, and it was granted. Br. Monftrans, [346] pl. 29. cites 7 H. 4. 2. 2. It is faid that an executor who brings an action fhall fhew As to the fuing of atthe teflament, and teftament nuncupative under the feal of the ordi- tions, the nary is fufficient; quod nota bene. Br. Monftrans, pl. 140. cites judges will 14 H.6.5. not admit the execu tors to fue for things in action unless they fhew the teftament duly proved under the feal of the ordinary, but if proved by fome of them, the king's courts will allow it, 9 Rep, 38, A. in Henfloe's cafe. 3. Debt Wherefore the plaintiff faid that the adminiftra tion was committed 3. Debt by executor; the defendant imparled; he shall not have oyer of the teftament after this by award. Br. Oyer de Records, pl. 39. cites 19 H. 6. 7. 4. And after imparlance the defendant shall not have oyer of the testament, nor of the obligation and condition, and yet he may plead variance between the writ and the obligation after imparlance, for the obligation remains always in court; contra of the teftament. Br. Ibid. cites 38 H. 6. 2. 4. Debt against an executor, who faid, that the dean of Paul's in London has jurifdiction ordinary in K. and fhewed by fpecialty, pleading, how, &c. and that the party died there, and that the dean committed the administration to the defendant, because the party died into him pend. teftate, and fo ought he to be named adminiftrator, and not executor; ing the judgment of the writ; Yelverton prayed oyer of the letters of adr miniftration. Portington faid, you fhall not have it; for where an executor brings an action, he ought to fhew the testament Br. Monftrans, pl. 55. cites 21 H. 6. 23. writ, where he was made executor and admini stered as executor before, and the defend ant faid, that the adminiftra 5. But if an action be brought against two executors, and they fay, that the teftator made them and F. N. executors, who adminiftered with them, and is alive, not named, &c. judgment of the writ, there they need not fhew the teftament; and fo note a diverfity where they bring the action, and where the action is brought against them; and the best opinion was, that in the cafe above, the defendant need not fhew the letters of adminiftration. Ibid. abfque hoc that it was committed pending the writ, and the other e contra. Br. lbid. The defendant need not fhew the letters of administration by way of defence. Contra where it is by way of action. Br. Administrators, pl. 34. cites Hill. 21 H. 6. 23. and Pafch. 10 E. 4. 1. tion was committed ut fupra, 6. Testament and obligation shall be fhewn without demand of the other party, but in formedon in remainder the demandant is not bound to fhew it, unless the tenant demands it; quod nota diverfity. Br. Count, pl. 53. cites 36 H. 6. 16. 8. Trefpafs of chattels taken; the defendant juftified as administrator of the goods of J. N. to whom the goods belonged, and was not compelled to fhew the letters of administration, because it was a thing vested in poffeffion and by way of bar; but if it was by way of demand, he and executor fhall fhew the letters of administration and testament; but he who claims a rent-charge or reverfon, fhall fhew deed, though it be by bar, for he is intitled to the thing by the deed, but letters of adminiftration intitles him to the action only, and not to the thing. Br. Monftrans, pl. 118. cites 10 E. 4. 1. 9. Trefpafs by an executor of goods carried away in the life of the teftator, the plaintiff fhall not be compelled to bew teftament in another term, by the opinion of the Court; and therefore, if the defendant does not demand oyer of it the firft term, he has furceased his time; contra of letters of adminiftration; for there the [347] form is quod profert literas fuas adminiftrationis, and therefore there exception may be taken at any time. But fee the Old Book of Entries, that he ought to fhew the teftament alfo, et profert literas teftamentar', &c. nevertheless it appears there, that notwithstanding this, the defendant fhall not have oyer of it in another term. Br. Monftrans, pl. 143. cites 16 E. 4. 8. 10. Trefpafs 16. Trefpafs in an action brought by adminiftrator, he ought to fhew the letters of adminiftration. Br. Monftrans, pl. 125. cites 21 E. 4. 50. 11. So where he justifies as adminiftrator; per Brian. Br. Monftrans, pl. 125. cites 21 E. 4. 50. ecutor. Ibid. 12. Trefpafs by A. adminiftrator of the goods, &c. of J. N. and So of an excounted of goods taken out of his proper poffeffion, and yet did not pl.115. cites fhew the letters of adminiftration, notwithstanding that he named 6 E. 4.1.himfelf adminiftrator, by reafon that it is of his own poffeflion. But in an Br. Monftrans, pl. 128. cites 22 E. 4. 11, 12. action of fion of the teftator he shall fhew teftament; note a diverfity. Ibid. 13. So if executor brings fuch an action, &c. and counts of a duty to bimfelf, or of a bailment made by himself. Br. Monftrans, pl. 128. cites 22 E. 4. II, 12. 14. In trefpafs the plaintiff intitled himself by leafe for years of a ftranger. The defendant faid, that before this the leffor leafed to W. N. for years, which term yet continues, and W. N. made the plaintiff his executor, and died, and he entered as executor, and a good plea without fhewing the teftament, for it shall not be shewn to the court, but to enable the plaintiff to the action, and now the defendant has admitted it; quod nota by award. Br. Monftrans, pl. 167. cites 1 H. 7. 18. 15. He who claims by devife need not fhew teflament; per Fineux Ch. J. Br. Monftrans, pl. 172. cites 13 H. 7. 14. and 20 H. 7. 6. reversed. accordingly. 16. Affumpfit by executor of a promise to his teftator found for the Noy, 63. plaintiff, and judgment; error was affigned, because he did not S. C. and fhew in court the teflament in the declaration mentioned. It was holden judgment per tot. Cur. to be matter of fubftance; for otherwife he does not 3 Bulft.223. intitle himself to the action, and the judgment was reverfed. S. C. cited Cro. E. 551. pl. 1. Pafch. 39 Eliz. B. R. Edwards v. Stapleton. 16. In feire facias on judgment had by the teftator, he need not fay in the writ, profert literas teftamentarias; and Raymond having, for want thereof, demurred, it was over-ruled per Cur. on reading the record. Keb. 894. pl. 59. Pafch. 17 Car. 2. B. R. Whitmore v. Jaacob. Sid.249. pl. 16. White man v. Miles, S. C. held it only form, and fo it had been adjudged, and then defendant fhall not have advantage of it on fuch general demarrer; and judgment for the plaintiff.— But if judgment had been had by exe utor or adminiftrator it seems clear that in sei. fa. thereupon it is not requifite to lay profert in cur. literas, &c. because it appears by the judgment. Ibid. by the reporter. 17. In a fci fa. by an adminiftrator, on a judgment recovered by the inteftate or by himself, he need not fay, profert literas adminiftra tionis; for a fci. fa. is no declaration. 2 Keb. 882. pl. 62. Hill. 23 & 24 Car. 2. B. R. Remington v. Holt. Where an tor brings 18. When the defendant pleads letters of adminiflration, he need not fay, hic in curia prolat'. But the plaintiff that intitles himfelf adminiftrato the action muft; per Vaughan. Cárt. 227. Trin. 23 Car. 2. a fcire faC.B. Mellor v. Overton. cias, on a judgment recovered by himself, he need not come with a profert his in curia lit' teftam', byt where he brings it VOL. XI. on on ajudgment recovered by his teftator, he muft. 2 Show. 459. pl. 425. Hill. 1 & 2 Jac. 2. B. R. Valiet v. French. 19. If an executor brings an action as executor, where he need not name himself executor, he need not plead with a profert in curia of the letters teftamentary. 2 Ld. Raym. Rep. 1215. Mich. 4 Ann. in cafe of Wallis v. Lewis. 20. An adminiftrator brought an action, and did not fet forth the letters of adminiftration; yet the defendant having pleaded non eft factum inteftati, that made the declaration good. 8 Mod. 356. cites Hill. 11 Geo. in the cafe of Hedley v. Williams. 589. S. C. and verdict give en for the plaintiff ac the af afide, and a rule of Court made that the defendant (Z. a. 10) Pleadings. What fhall be faid to be an Admiffion of Affets. 1. A. Brought action against an administrator, who, pending that fuit, let judgment be had against him by B. and did not plead that judgment in bar to the first action, but fold the goods of the inteftate to pay B. A. likewife got judgment, and brought a fieri facias, on which the Sheriff levied part, and as to the ref returned a devaffiles was fet tavit. In an action brought against the sheriff for a falfe return, it was infifted for the plaintiff, that the fuffering judgment by default was no confefsion of affets, and that the fheriff ought not to have returned a devaftavit, but a nulla bona, and upon that there ought to have been a fcire fieri inquiry; but adjudged, that he may return a devastavit on the first fieri facias, if he will run the rifque of its being true or not, and that the inquiry is only for his fafety, that if an executor fuffers judgment to go by default, or confiffes it, he admits affets; that he might have pleaded the firft judgment obtained by B. against the action of A. & riens ultra; but not having done it, it is an admission of affets, to answer the against the judgment in this as well as to the first action, and he is eftopped to fay the contrary upon a devastavit returned. 1 Salk. 310. pl. 14. Mich. 12.W. 3. B. R. Rock v. Leighton. fhould have his cofts. Comyns's Rep.7. pl. 57. S. C. the Court heid that the action did not lie sheriff; for he had done his duty; for when a judgment is given against an executor or adminiftrator, it is given of ali affets which he had at the time of the commencement of the action, and if an executor or administrator hath paid off a judgment pendente lite, it cannot be given in evidence upon pleae adminiftravit pleaded; for it ought to be pleaded fpecially. 12 Mod. per Holt 2. If there are three judgments against the teftator, each one for 27. S. C. 20%. and the executor has affets but to the value of 201. if he pleads & S. P. accordingly these three judgments, and one of them is ill pleaded, or, upon iffue joined, one of them is found against the executor, (though in fact, Ch. J.If he pleads perhaps, he has but 201. which will not be fufficient to fatisfy the Several judg- other two judgments of 201.) yet, by pleading the three, it is an ments it is a implicit confeflion of aflets for inore than the two judgments, and therefore in fuch cafes judgment fhall be againft him for the value of the faid judgments; per Holt Ch. J. which Gold J. agreed. confeffion of aflets to fatisfy all, Ld. Raym. Rep. 678, 679. Trin. 13 W. 3. in cafe of Parker v. and the Atficld. riens ultra. a certain fum is only form, and not traverfable. 1 Salk. 311. pl. 16. Trin. 13 W. 3. B. R. the third refolu. tion in the cafe of Parker v. Atfield. (Z. a. 11) What Plaintiff must do on Plene Admi- [349] niftravit pleaded. I. IN debt against executors or adminiftrators, plene adminiftra- nota. Debt against an an executor who pleaded plene adminiftravit, the plaintiff replied assets die exhibitionis billæ, viz. 23d of October, which is the first day of Michaelmas term; now it appears upon the evidence, that the bill was not filed till after fourteen days or after in that term, nothing which he had in his hands which he had paid within that term to difcharge other debts of equal nature, before the very day of filing the bill, fhall be affets. Sid. 432. Mich. 21 Car. 2. B. R. Man v. Adams. 2. Debt against three executors of an executor, one pleads a releafe to his teflator at L. the other pleads that firft teftator made their tef tator, and one B. his executors who is yet living, and not named in the writ, and prays judic' de breve; the third pleads plene adminiAravit in the county of W. and fo to iffue upon all. Here all the pleas go to the action, and therefore it was faid that the plaintiff at his election might try which he would firft, for if any one were found with him he fhall recover de bonis teftatoris. But the releafe being a perpetual bar between the parties, and to avoid entanglement, if any of the other iffues were tried firft, a nifi prius fhall iffue to L. to try the faid release at the prayer of the defendant. But if one had pleaded in abatement of the writ, the other to the action, the plea in abatement fhould be firft tried, for the plaintiff ought not to recover upon a bad writ. 8 E. 4. 24. a. pl. 3. 3. Executor adminifters, and afterwards refufes in court, and adminiftration is granted to 7. S. In debt brought against the executor he pleaded plene adminiftravit, and gave in evidence that he himself had paid certain debts, and that all the refidue of the affets were recovered by creditors against the faid adminiftrator, and paid by him. This is no good evidence to maintain the iffue; for he to whom the administration is granted is a mere ftranger, and what he did is without warrant, and therefore it is no adminiftration to prove the iffue. Le. 154, 155. pl. 215. Trin. 32 Eliz. C. B. Haw kins v. Lawfe. Fitzh. tit. s. c. Executors, pl. 31. cites in totidem 4. Debt was brought by original writ against an adminiftrator in 2 Le. 60. another county than where he was commorant, and before he had notice pl. 88. S.C. of this action he paid feveral debts of the inteftate due by Specialties, verbis. and fo he had not affets to pay the debt demanded, though he had affets at the day of the tefte of the original. And now the defendant appearing, pleaded this fpecial matter, and concluded, viz. and fo nothing remained in his hands; and it was held per Cur. to be a good plea. Le. 312. pl. 434. Trin. 32 Eliz. C. B. Corbet's cafe. |