death of the inteftate; and upon a demurrer it was infifted for the plaintiff, that the judgment was ill, and that he being a stranger to it could neither bring error or deceit, and had no other ways to avoid it but by plea, and the Court held that the plaintiff might avoid the judgment without writ of error, efpecially in this cafe, where it is not only erroneous but void. 2 Mod. 308. Trin. 30 Car. 2. C. B. Randal's cafe. Show. 289. S.C. and by Holt Ch. J. the plaimi need not aver aver fraud if to any, it is enough to avoid their bar, 8. Indebitatus affumpfit against an executor who pleaded feveral judgments, &c. and that he had not affets ultra. The plaintiff replied particularly to each judgment, and averred that they were kept on foot by fraud. The defendant in his rejoinder put all the judgments together, and faid that they were not kept on foot by fraud; and upon a demurrer the queftion was, whether he should not have made several rejoinders to all the judgments particularly, and not have put them altogether? but per Cur. the plaintiff need only aver in his replication that feparalia judicia prædicta are kept on fost by fraud, and then this rejoinder had been good likewife. 4 Mod. 63. Mich. 3 W. & M. in B. R. Beak v. Kent. feparalia prædicta were kept on foot by fraud.Carth. 195. S. C. and the Court held the rejoinder good, because the traverse was that all or any of the judgments were kept on foot by fraud; and if iffue had been joined that all were kept on foot by fraud, and it had been found that one alone had been, this iffue had been found for the plaintiff, because the plea was falfe in part, and therefore the whole is falte, and confequently this general form of pleading could be no difadvantage to the plaintiff, (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 iffue upon that alone. The plaintiff feeing the opinion of the Court, prayed leave to difcontinue, which was granted. 9. If there is a fraud in the pleading of judgments or specialties the executor's iffue must be taken on the fraul; for if you reply a compofition made, and that yet the judgment is continued by fraud, ftill it is the fraud that is traverfable; and if one pleads ten judgments, and one of them is by fraud, he has confeffed affets at least to the full value of the judgment. 12 Mod. 528. Gould J. cited DEAL v. GILESTON, and WORKHOUSE V. SIMON, and faid it had been held in C. B. that a traverse of the compofition had been well. 10. Debt upon a bond against an adminiftrator who pleaded feveral judgments, and nihil ultra 51. The plaintiff replied, as to ane judgment there was but fo much due, which the creditor was willing to accept in full, and that the defendant by fraud deferred the payment of that money, and kept the judgment on foot to defraud the creditors, and replied the fame thing as to another judgment, and demurred as to the reft. The defendant rejoined, that as to one judgment it was not kept on foot by fraud, &c. and as to another no affets ultra fo much, and fo to the 3d, and as to the rest he joined in demurrer; adjudged, if it appears that the debtee was willing to take lefs than is recovered, this is evidence of fraud, but if it is fhewed that the adminiftrator had not affets to pay that fum, it is no fraud, and that the conclufion of the replication with hoc paratus eft verificare as to every judgment is well enough, but a general conclufion to all had been better. I Salk. 311. pl. 16. Trin. 13 W. 3. B. R. the 4th and 6th refolution in cafe of Parker v. Atfield. or he might generally have faid that judicia Ld. Raym. Rep. 678. judged. So if the one alligns au ditors, &c. the action (Z. a. 13) Pleadings. In what Cafes he must name himself, or be named Executor or Administrator. I. 1. DEBT by one executor; the defendant faid that there is another alive; judgment of the writ, the plaintiff faid that he is difcharged of the adminiftration and never adminiftered, and yet the writ was abated, because he may adminifter when he pleafes. Br. Executor, pl. 27. cites 41 E. 3. 22. 2. Debt against adminiftrators; it was agreed that if the defendant fays that the party made him and another executor why proved the teftament, judgment of the writ brought against him as administrator, and the plaintiff fays that he died inteftate, prist, and the defendant would have eflopped him by the teftament proved under the feal of the ordinary; & non allocatur. Br. Administrator, pl. 11. cites 44 E. 3. 16. 3. An executor who refufes and takes adminiftration before the ordinary, fhall be impleaded as adminiftrator, but executor in right and executor de fon tort demefne fhall not be impleaded as administrator, but as executor in pain of abatement of the writ, Br. Adminiftrator, pl. 15. cites 50 E. 3. 9. 4. If executor brings ravifhment of ward of a rayifhment in time of teftator, he fhall be named executor in this action; contra of a taking out of his own poffeffion, there he need not be named executor, Br. Executor, pl. 122. cites 7 H. 4, 2. 5. Executors affign auditors to the bailiff, and he is found in arrearages, and they brought debt not naming them executors, and counted how he was in arrearages to the teftator who made them executors, of debt up- and they affigned auditors; the writ abated per Cur. because they are not named executors in the writ; and this exception fhall be pleaded to the writ; quod nota. Br. Executor, pl. 12. cites 9 H. 6. 11. on the account thall be in the names of both by the name of executors; for this thing, viz. the debt, was never in their poffeffion. Per Keble. Br. Executor, pl. 1c1. cites 2 H. 7. 15. S.P. Ibid. Br. Execu tors, pl. 69. cites 19 H. * 6. Debt against executor, he faid that the teflator made him and pl. 13. cites 7. S. his executors, who adminiftered and is alive, &c. not named, 9 H. 6. 44. -S. P. judgment of the writ; and the plaintiff faid that he made the deand ittue fendant executor, abfque hoc that he made J. N. executor, and ill; by thereupon which he faid ut fupra, abfque hoc that he made both executors; and the other e contra; note a diverfity; for where it is brought against executor, it is no plea to fay that there is another executor alive if he does not fay that he has adminiftered; but where it is brought ↑ by executor it is a good plea to fay that there is another exccutor alive, though he does not fay that he has administered; for if the one adminilters, the action fhall be brought in the name of him and of all Ibid. pl. 88. the others; but the action fhall not be brought against him who does not adminifter; note a diverfity. Br. Executor, pl. 20. cites 33 H. 6. 38. 6. 31. for he shall not be named unless he adminifters. -S. P. cites 9 E. 4.12. + S. P. Ibid. pl. 13. cites 9 H. 6. 44. -S. P. in account by executors, to which the plaintiff faid, that after after this the teftator made the plaintiff his fole executor at B. in the county of M. &c. To which the defendant faid, that the truth is, that he made the plaintiff his fole executor, but after this he made the plainaiff and the other his executors, abfque hoc that he made the plaintiff his fole executor after this, &c. and at laft he was compelled to fhew at a day in this term in his rejoinder, that fuch a day he made both his executors, absque hoc that he made the plaintiff his fole executor after this day; quod nota. Br. Executor, pl. 21. cites 33 H. 6. 44. *So where four are made executors, and the one, or all except one, refuse before the ordinary, and the one proves the testament, in debt by him he and all the others shall be named; for the teftator cannot die testate and inteftate; per all the juftices except Danby. Ibid. pl. 24. cites 35 H. 6. 35, 36. S. P. Ibid. pl. 69. cites 19 H. 6. 31.- S. P. ibid pl. 88. cites 9 E. 3. 12. 314. but hould be 9 E. 4. 12.-S. P. if there are 20 executors, and one only proves the teftament, they may proceed jointly or be fevered if the others will not fue. Ibid. pl. 117. cites 21 E. 4. 24. per tot. Cur. [356] 7. Debt against a feme executrix of the teftament of her husband; the defendant demanded judgment of the avrit; for the baron died inteftate, and the ordinary committed the administration to her, and fo ought to be named adminiftratrix, and not executrix; judgment of the writ; the plaintiff demanded oyer of them; and fhe fhewed the letters, which would that the ordinary ordain the feme collector ad petend' levand' colligend' et exigend' omnia bona, catalla et debita defuncti, & illa venditioni exponend', et denarios inde ad manus ordinarii folvend', &c. ac plenum inventorium inde conficiend', &c. debitorefque acquietandi, &c. poteftatem committimus. Per Fairfax, it appears that he is not intire adminiftrator, therefore the writ is good. Per Brian Ch. J. debt does not lie against a particular adminiftratrix, as where the adminiftration is committed of all things which founds in action, debt lies not, but againft fuch who has administration omnium bonorum & catalla defunct', &c. by which, anfwer; quod nota. Br. Adminiftrator, pl. 34. cites 16 E. 4. 1, 2. 8. If a feme be executrix and takes baron, and after he delivers money to F. S. and her baron dies, and she brings a writ of account, and does not name herself executrix, and yet well; because it was a thing which was once in her poffeffion; per Keble. Br. Executor, pl. 101. cites 2 H. 7. 15. 9. In debt by adminiftrators or against them, all fhall be named, but in debt against executors it fuffices to name thofe who administer, but in debt by executors all shall be named, and in debt against one as heir he fhall be named heir, and it shall be debet and detinet. Br. Dette, pl. 183. cites the Register. 10. If goods are taken out of the poffeffion of one executor where there are feveral executors, he alone may maintain an action, and that without naming himfelf executor. Went. Off. Ex. 104. 11. In detinue for goods delivered to and detained by teftator, and now detained by executor, he need not be named executor; for he fhall not answer damages for his teftator's detaining. Went. Off. Ex. 192, 193. * 12. Debt against an executor, who pleaded that J. S. is co-executor Sid. 242. with him not named in the writ; judgment of the writ; but does pl. 3. S. C. Judgment not aver that the other had administered. Upon which the plaintiff that defenddemurred, and the plea was adjudged ill; for although when an ant refponexecutor fues, the defendant may plead another executor not -Keb. named without fhewing that the other has adminiftered, for he 865. pl. 10. may not know whether he has administered or not; yet when an Swallow v. executor is fued, if he plead another executor not named, he Emerfon, ought deat oufter. S. C. ad judged for ought moreover to fay that he has administered; for this lies in the plaintiff. his knowledge. 1 Lev. 161. Pafch. 17 Car. 2. B. R. Swallow v. Emberfon.. [357] (Z. a. 14) Bond to the Ordinary; and in what Cafes Executor must account in the Spiritual Court. Hob 83. pl. 110. Slawney's cafe, S. C. & S. P, held clearly. I. 1. A. 2. The Court feemed that the ordinary cannot take an obligation of the adminiftrator, that after the debts and legacies paid he will diftribute the refidue of the goods at the appointment of the ordinary. Mo. 864, pl. 1191. Hill. 13 Jac. Slawney v. Elbridge. -Lev. 233. Hill. 19 & 20 Car. 2. B. R. Hughs v. Hughs, refolved that bonds taken by the ecclefiaftical court to oblige the administrator to distribution are void. But see ftat, 22 & 23 Car. 2. cap. 10. intra, pl. 7. As to the divifion of the goods 3. An adminiftrator is fued in the fpiritual court to make an account, and a prohibition was denied; but otherwife it had been if which on an to make a divifion of the goods, Noy, 24. Mich. 15 Jac. Moun appeal was ordered by tague v. Clerk. the delegates, a prohibition was granted. Noy, 24. Took's cafe. Ibid. cites Pafch. 16 Jac. C. B. Lanch v. Roffe, where a prohibition was granted as to making a divifion, but otherwise as to rendering an account. Ibid. fays, nota the ftat. 21 H. 8. gives power to 4. But if an executor be fued in the fpiritual court to account, a prohibition will be granted. Noy, 28. Mich. 15 Jac. Sparrow v. Norfolk. the ordinary, but not for accounts by executors. 5. The ordinary has no power to hold plea to try payment or not payment, or to adminifter an interrogatory to a witnefs, but ought to accept the account as it is; for the creditors may fue for their debts at the common law, and then payment or not pay, ment shall be well tried, and there one witnefs will fuffice, Noy, 78. Bellamy v. Alden. 6. The spiritual court try plene adminiftravit per teftes; but if they refuse such proof as is allowable at common law in discharge of the party, a prohibition will go. 3 Bulft. 315. Mich. 1 Car. B. R. Dickes v. Brown. * [ 358 ] ftatute of virtue of to the ordi nary, on miniftra tion, is account in al court without be ing cited; 7. 2223 Car. 2. cap. 10. f. 1. All ordinaries and ecclefiaftical Since the judges, having power to commit administration, sball, upon their granting 22 Car. 2. adminiftration of inteftates goods, take bonds with fureties, two or more, an adminiin the name of the ordinary, with this condition, viz. the condition of ftrator by *this obligation is fuck, that if the within bounden A. B. adminiftrator the obliga. of all and fingular the goods, chattels, and credits of C. D. deceased, tion entered do make, or caufe to be made, a true and perfect inventory of all and into by him fingular the goods, chattels, and credits of the faid deceased, which have or fball come to the hands, possession, or knowledge of him the faid A. B. taking letor into the hands and poffeffion of any other perfon or perfons for him; ters of adand the fame fo made do exhibit, or caufe to be exhibited, into the registry of court, at or before the day of next enfuing; and the fame goods, chattels, and credits, and all other the goods, chattels, and credits of the faid deceafed, at the time of his death, which at any time after fall come to the hands or poffeffion of the faid A. B. or into the hands and poffeffion of any other perfon or perfons for him, do well and truly adminifler according to law; and further do make, or cause to be made, a true and just account of his faid adminiftration, at fon intitled er before the day of and all the rest and refidue of the faid tion by that goods, chattels, and credits, which shall be found remaining upon the faid adminiftrators account, the fame being firft examined and allowed of by the judge or judges for the time being, of the faid court, shall deliver and pay unto fuch perfon or perfons refpectively, as the faid judge or judges, by his or their decree or fentence, pursuant to the true intent legatee and meaning of this act, fhall limit and appoint; and if it fhall hereafter done before appear that any laft will and teftament was made by the faid deceased, and the executor or executors therein named do exhibit the fame into the faid court, making request to have it allowed and approved accordingly, if the faid A. B. within bounden, being thereunto required, do render and deliver the faid letters of adminiftration (approbation of such teftament being first had and made) in the faid court; then this obligation to be void and of none effect, or elfe to remain in full force and virtue. and a per to diftribu statute may fue the ad miniftrator for an ac count, as a might have that ftatute, for the next legatee by of kin is a the ftatute, statute le and as a gatce fhall have the fame remedy as the other legatees might before the statute; but a debtor cannot foe the administration bond for non pay. ment of a debt to him, or a devastavit committed by the adminiftrator. 1 Salk. 315. pl. 14. Hill. 6 Ann. B. R. Canterbury (Archbishop) v. Wills. 11 Mod. 145. Canterbury (Archbishop) v. Willet, S. C. and by Holt Ch. J. an executor is bound to account, but a creditor must take the account as the executor has made it upon oath; but if a legatee comes he may unravel the account, becaufe it is the only court for him to fue in, and therefore he is not bound by that account; but if the executor will pay him his legacy, then he cannot compel him to exhibit an inventory, or to account, bétaufe he has the end of his fuit; and cites Ravm. 470. H. was bound in a bond according to the ftatute 22 & 23 Car. 2. cap. 10. that C. the administra tor should bring in a full inventory, and a diftribution was decreed by the commiffary and judge of the court in Sudbury in Suffolk to feveral of the inteftate's relations, which the adminiftrator would not comply with, and therefore was excommunicated. The defendant craved oyer of the bond, and pleaded that there was an account given in, and ifiue joined that there was no fuch account, and puis darrein continuance he comes and offers a plea of a release. Exception was taken; for if it should be in the commiffary's power to release this bond, the ftatute would be of no force. And per Powell J. the doc tor has not done well in giving this release, and it is a breach of truft; quære quid inde venit. Holt's Rep. 660. pl. 7. Hill. 7 Ann. Butler v. Hammond. 8. The widow in the fpiritual court fet up a procurator for her children, the infants, and gets her account paffed, and each child's proportion |