defendant as executor he pleaded a judgment which he had recovered against the deceased, and so justified by way of retainer. Replication, that the defendant was executor de son tort. Rejoinder, that after the last continuance the defendant had obtained letters of administration. On demurrer, it was objected, that the rejoinder was a departure from the plea. But the court held, that it was well enough; because the plea did not expressly admit, that defendant had proved the will, but only admitted the defendant's executorship according to the declaration. By the replication it appeared, that the defendant was not charged as a rightful but as a wrongful executor, which could not appear on the declaration, the method of declaring against both of them being the same. And the rejoinder set forth a matter, which made the acting as unlawful executor justifiable; for the subsequent administration related to the death of the intestate, and purged the precedent wrongful executorship, so as to give the defendant the benefit of retaining (f). But, although an executor de son tort cannot avail himself of his own wrongful act in taking possession of the goods of the deceased, in order to retain a debt for his own benefit, yet he may plead, in answer to the claim of a simple contract creditor, that, after action brought, he had disposed of the assets in that course of administration which the law allows, viz. by discharging a debt of higher degree as a specialty debt; for if, at any time before plea pleaded, an executor comes to the knowledge of such a debt, he is bound to pay it before a simple contract debt, whether he be a rightful or wrongful executor (g). Whether he may show such payment in mitigation of damages (for he cannot plead it in bar) in an action brought against him by the rightful executor is perhaps doubtful. It would seem that he may (h); provided he acted bona fide (i). In Woolley v. Clark, 5 B. & Ald. 744, where the point was decided differently, but without discussion, the executor de son tort had sold goods of the testator after he had notice of a will subsequent to that under which he assumed to be acting. X. Evidence. In all actions by and against executors or administrators, the character in which the plaintiff or defendant is stated on the record to sue or be sued, shall not in any case be considered as in issue, unless specially denied, 5 Pl. R. T. T. 1853. In all questions respecting personalty, the probate or letters of administration with the will annexed are the only legal evidence of the will. (See ante, p. 765.) Trespass for taking goods. On Not Guilty, the (f) Vaughan v. Browne, 2 Str. 1106; Andr. 328; 7 Mod. 274, and MS. (g) Oxenham v. Clapp, 2 B. & Ad. 309. (h) Wms. Exors. 236 (5th edit.). (i) Per Lord Campbell, C. J., Thompson v. Harding, 2 E. & B. 630. defendant admitted that the goods had been in the possession of the plaintiff, but insisted that he, the defendant, had a property in them as executor of I. S., and then produced the original will, by which he was appointed executor. But, per Raymond, C. J., "I cannot allow the original will to be evidence to prove a property in an executor; the probate must be produced; for, perhaps, the [Ecclesiastical] Court will not allow this to be the testator's will. Besides, until probate, a man dies intestate; and, if the executor dies before probate, his executor shall not be executor to the first testator" (k). All that is requisite, however, is to show, by legitimate evidence, that the (Probate) Court has given authority to the person to administer (7). It is only the act of the (Probate) Court that is to be proved (m). Hence, before the late Probate Act, it was held sufficient to produce minutes of the proof of the will and sealing of the probate, indorsed by the surrogate and registrar of the Ecclesiastical Court, it being shown that, by the practice of the court, no other record of the grant was kept (n). If the probate be in the hands of the opposite party, a copy of the will is admissible, after notice to admit (o). So after notice to defendants' executors to produce probate, and refusal; it has been held, that an instrument, produced by the officer of the [Ecclesiastical] Court, purporting to be the will of the defendants' testator, and indorsed by the officer as being the instrument whereof probate had been granted to the defendants, and that they had sworn to the value of the effects, is admissible in evidence in an action against defendants for money had and received by their testator (p). So the original Act Book in the Prerogative Court, containing the entry of probate having been granted, &c. (9), or an examined (r), and now (by the 14 & 15 Vict. c. 99, s. 14) a certified (s) copy thereof, is admissible, without giving notice to produce the probate or letters of administration. So where a probate of a will is lost, an exemplification of such probate is admissible (†). Upon issue joined on a plea of plene administravit, the amount of the stamp upon the probate is admissible in evidence; but it is not, it seems, even primâ facie evidence of the amount of assets received (u). Probate is not admissible to prove declarations of the testator as reputation in questions of pedigree (x). Where a (k) Coe v. Westernham, Norfolk Summ. Ass. 1725; Serjt. Leeds' MSS.; Pinney v. Pinney, 8 B. & C. 335, acc. (1) There is an exception to this in the case of actions for torts, (or substantially for torts, as for money had and received in certain cases;) founded on the actual possession of the executor or administrator, in which case the production of probate is not necessary. Oughton v. Seppings, 1 B. & Ad. 241; Elliott v. Kemp, 7 M. & W. (m) Wms. Exors. 1713 (5th edit.). (o) Goldstone v. Tovey, 6 B. N. C. 274. bill of exchange was indorsed, generally, but delivered to A., as administratrix of B., for a debt due to the intestate, and A. died intestate after the bill became due, and before it was paid: it was held, that the administrators de bonis non of B. might sue upon the bill; and that their title was sufficiently proved by the letters of administration de bonis non, without producing those granted to A., the administratrix (y). A retainer may be given in evidence on plene administravit (z); but debts of a higher nature subsisting cannot (a). Upon plene administravit et issint riens inter mains, if it be proved that the executor hath goods in his hands, which were the testator's, he may give in evidence, that he hath paid to that value of his own money, and need not plead it specially (b). In case against executor, upon plene administravit, the plaintiff must prove his debt, otherwise he shall recover but one penny damages, though there be assets; for the plea admits the debt, but not the amount (c). But in debt it is otherwise (d). The allegation that an executor has assets, which the plaintiff has to prove under a plea of plene administravit, means legal assets (e) presently available. Where, therefore, A. made a promissory note payable on demand to his son B., and by his will devised a freehold house to B., charged with 2407. for payment of debts, &c. to be raised within a year after his death, (which period had not elapsed at the time of the trial,) and, having made B. and C. his executors, died; and B. afterwards indorsed the note to D., who sued the two executors thereon, and C. pleaded that the note was made payable to B. on demand, and that B., at the time of the indorsement, had assets of the testator in his hands, whereby the note was satisfied; but the only evidence of assets was the abovementioned charge of 2407.; it was held, that the plea was not proved, and that the plaintiff, the defendants having omitted to plead plene administravit, was entitled to a verdict (ƒ). XI. Judgment.-Costs. On a plea of plene administravit generally, by an executor, the plaintiff may immediately take judgment of assets quando acci (y) Catherwood v. Chabaud, 1 B. & C. 150. (z) Plumer v. Marchant, 3 Burr. 1380. (a) Bull. N. P. 141. (b) 1 Inst. 283, a. (c) Shelley's case, Salk. 296. (d) Saunderson v. Nicholle, 1 Show. 81. (e) "The true test whether assets are legal or equitable, is, not whether the executor or administrator, but whether Wms. the claimant, can reach them without re- (f) Lowe v. Peskett, 16 C. B. 500. derint (g). In debt or writ of revivor (h) on this judgment, evidence of such assets only as have come to the executor's hands since the judgment will be received (i). Judgment against an executor, in covenant broken by himself, shall be de bonis testatoris; for it is the testator's covenant which binds the executor as representing him; and therefore he must be sued by that name (k). In like manner, upon an obligation made by testator for the performance of covenants, judgment in debt on the bond for a breach of covenant by executor, shall be de bonis testatoris (1). So in debt against an executor on a bond made by testator, if the defendant plead non est factum, and it is found against him, judgment shall be for the debt and damages de bonis testatoris; for the executor cannot know whether it be the deed of the testator or not (m). In debt on bond against an executor, if the defendant plead "fully administered," and any assets are found in his hands, the plaintiff shall have a verdict and judgment for so much de bonis testatoris in the hands of the executor, and judgment quando, &c. for the residue (n). In debt against two executors, if they plead, either collectively or severally, "fully administered," and the jury find that the one has assets and the other has not, the verdict and judgment shall be against him only who is found to have assets, and the other shall go quit (o). Costs. Where the cause of action is such, that the executor might have declared in his own right, he is liable for costs, if he is nonsuited (p). Where an executrix pleaded first, non assumpsit; 2ndly, ne unques executrix; and 3rdly, plene administravit; and issues on the first pleas were found for the plaintiff, and on the last for the defendant; it was held, that, the last plea being a complete answer to the action, the defendant was entitled to the general costs of the trial (q). Plaintiff sued as administratrix, upon promises to the intestate, and upon an account stated with her as administratrix of monies due to the intestate, and a promise to pay her: it was held, that it thereby appeared that the contract was one made between the plaintiff and another person within the words of 23 Hen. VIII. c. 15, and, therefore, that, after a nonsuit, the defendant was entitled to costs (r). Declaration stated, that the defendant being indebted (g) Noell v. Nelson, 2 Wms. Saund. 226. See the form, ibid. 216, a. (h) Com. Law Proc. Act, 1854, s. 91. (i) Taylor v. Hollman, Bull. N. P. 169. (k) Collins v. Thoroughgood, Hob. 188. (1) Castilion v. Executor of Smith, Hob. 283. (m) Bro. Abr. Exor. pl. 109. (n) Harrison v. Beecles, cited 3 T. R. 688. Judgment was formerly entered in such a case for the whole debt; Lee v. Ridford, 1 Roll. Rep. 58; but execution taken out only for the sum found by the verdict. Wms. Exors. 1790 (5th edit.). (o) Bellew v. Juckleden, 1 Roll. Abr. 929, (B.) pl. 5; Parsons v. Hancock, 1 M. & M. 330. (p). Grimstead v. Shirley, 2 Taunt. 116; Jones v. Jones, 1 Bingh. 249. (q) Edwards v. Bethel, 1 B. & Ald. 254; Ragg v. Wells, 8 Taunt. 129, acc. (r) Jobson v. Forster, 1 B. & Ad. 6. to the testator, at the time of his death, in consideration thereof, promised the plaintiff as executor to pay him the amount. The Statute of Limitations was pleaded; it was held, that the plaintiff being nonsuited was liable to costs, although he did not declare upon an account stated (s). But where the action was brought by the executor upon a contract entered into by, or for a wrong done to, the testator, the executor was not liable to costs under the above act (t). Now, however, by 3 & 4 Will. IV. c. 42, s. 31, in every action brought by any executor or administrator in right of the testator or intestate, such executor or administrator shall, unless the court in which such action is brought, or a judge of any of the said superior courts, shall otherwise order, be liable to pay costs to the defendant, in case of being nonsuited or a verdict passing against the plaintiff. An executor suing on a count upon promises to himself as executor, stating a consideration, partly of money due to testator in his lifetime, and partly of an account stated with himself as executor, is liable to costs if nonsuited, and cannot be relieved by the court or a judge under this statute (u). In order to induce the court to exempt an executor who has failed, from costs, it is not sufficient that the action has been brought bonâ fide, under counsel's advice, and that it has been defeated on a difficult point of law, unless there be improper conduct on the part of the defendant. Unnecessary prolixity in the pleadings is not such conduct: nor omitting to give the plaintiff information, which might have prevented his proceeding with the action, i. e. if the plaintiff did not apply for the information (x). (s) Slater v. Lawson, 1 B. & Ad. 893. (u) Spence v. Albert, 2 A. & E. 785. (x) Farley v. Briant, 3 A. & E. 839. VOL. II. |