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No. 3. — Erving v. Peters, 3 T. R. 691.

[* 691] moned: upon his not appearing, * judgment of award of

execution was given against him, and a moiety of the lands were extended by elegit. And ejectment being brought thereupon, it was specially found that the lands of the defendant in the judgment were entailed, and that the defendant in the ejectment was heir in tail; but in regard he might have pleaded that matter to the scire facias, and had omitted it, he had lost the benefit thereof. So the plaintiff, Mary, might have pleaded the judgment at her brother's suit; that would have defended the assets that she had against the action brought by Pugh : but she, having admitted the assets, she had to be liable to the action of Pugh by letting judgment go against her by nihil dicit, is in the same condition as if there had been no judgment against her at her brother's suit upon the covenant for £300. And the sheriff hath done her no wrong; for if upon an inquiry the jury had found the devastavit in the plaintiff, the plaintiff upon traversing the inquisition could not have given this judgment in evidence to defend herself, because she might have pleaded it in bar of the action. This case I (having heard in my chamber, because of the consequence of it) directed should be moved in Court, which, accordingly, was done; and both my Brothers, TURTON and GOULD, concurred with me in opinion; and so the verdict that was given for the plaintiff by consent, to be subject to the opinion of the Court, was set aside. If debt be brought against an executor, and he lets judgment go by nihil dicit or confession, it seems to be an admission of assets. For first, the want of assets is a good bar to the action that the plaintiff hath brought; and if issue be joined thereupon and found for the defendant, the plaintiff is forever barred. Hob. 199, Brickhead v. Archbishop of York, 1 Cro. 373. Now there is the same reason that since the defendant waives pleading the matter that would have barred the plaintiff, he thereby admits the having assets. It's true that when the defendant pleads a plene administravit the plaintiff may admit the plea to be true, and pray judgment de bonis et cattallis of the testator, et quo ad manus of the executor in futuro devenirent administrand'. Mary Shipley's Case, 8 Co. Rep. ; Neal v. Nelson, 2 Saund. 226. But that is a different judgment from what is given upon a nihil dicit, or a confession of the action; for that is the same as is given upon a plene administravit pleaded where there is a verdict for the plaintiff, viz., to recover de bonis testatoris

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si tantum in manibus habuit administrand', from which none can infer that, if he hath fully administered before, he is not affected by the judgment: but it is to be considered that though it be found * upon a plene administravit that the defendant [* 692] hath assets, yet is the judgment the same, and so ought to be; for if the defendant hath assets in his hands there is no reason to levy the money upon the executor's own goods unless he hath wasted; and, that being matter of fact, it must appear upon record, and judgment must be given thereupon before his own goods can be affected. But if a fieri facias de bonis testatoris doth issue upon a judgment had against the executor upon a plene administravit pleaded, if the goods cannot be found that were the testator's, namely, if the executor will not expose them to the execution, the sheriff may return a devastavit, it being found by verdict that he had assets. Now, then, since the pleading of riens inter mains would have been a good bar to the action (and if the plaintiff should admit it he should not have a judgment to have a present execution), yet the defendant hy not pleading that plea hath left the plaintiff to have a judgment upon which a present execution is to issue, which he could not have had, unless the defendant had assets; and such an admission is as good as a finding of a jury upon a plene administravit. Secondly, The case of an executor doth not in this case differ from that of an heir; for if the heir let judgment go by nihil dicit or confession, he admits assets. It is true the judgment is different; for an heir is chargeable upon the account of the assets which he hath in his own right, and the executor is chargeable in respect of assets that he hath in the right of the testator: but still the admission of assets is as much by a nihil dicit or confession in one case as in the other. The like if an heir plead non est factum, or conditions performed, a general judgment shall be given, if the matter pleaded be found against him. So in the case of an executor, if the matter pleaded be found against him, he admits assets; for if he hath none, why doth he plead that matter; it will be enough to deny assets, and that will bar the plaintiff. Objection, Bird v. Culmer, Hob. 178. Debt against an executor who pleaded plene administravit, and afterwards relictâ verificatione cognovit actionem. It was moved that it might be entered that he confessed assets. It was denied, because the confession can be only to the charge, which is the action ; from whence it is inferred that the confes

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sion of the action is not a confession of assets. Answer. Rather the contrary is to be inferred, namely, that plene administravit and a cognovit actionem are inconsistent; for he cannot confess the action without a relictâ verificatione of the plene administravit : 80

he must relinquish one to confess the other; for the one is [* 693] a * bar, but the other confesses all things requisite to

maintain the plaintiff's action. And as to the caution of the Court, it was no more but to confine itself to the order and method of the law, which is to make a proper entry, namely, to confess the whole action. Then followed the case of Ramsden v. Jackson, where Lord HARDWICKE thought himself bound by the authority of Rock v. Leighton on the very question; and the opinion of Lord Ch. J. LEE, in the case in Wilson, is to the same effect. Then there are three cases, all determining the same point. And if an executor may plead plene administravit and neglect to do so, I see no difference between such a case and one where he does so plead, and the plea is found against him.

GROSE, J. This case must be considered in a different point of view now from what it must have been prior to the statute of Anne: before the passing of that act the executor must either have denied the debt and admitted assets, or he must have admitted the debt and pleaded plene administravit ; the consequence of which was, that if only part of the debt were due, he must have paid the whole by his own admission. But since that statute he may plead both as to the debt and plene administravit : but if he will not avail himself of the advantage given to him by that act, and he will only deny the debt, the case of Rock v. Leighton shows that he admits assets. The authorities of Lord Ch. J. HOLT, Lord Ch. J. LEE, and Lord HARDWICKE are peculiarly strong, and conclude this question.

Postea to the plaintiffs.

ENGLISH NOTES. From the judgment of BULLER, J., in Pearson v. Henry (1792), 5 T. R. 6, 2 R. R. 523, it would seem that the question of acts amounting to an admission of assets was first raised about 1773.

A promise by an administrator to pay the debts of an intestate, is a nudum pactum if there be no assets. Pearson v. Henry, supra. So too the liability upon an implied promise of executors for funeral expenses incurred by a third person, by reason of the neglect of the executors to provide for the burial of the testator, depends upon the sufficiency of the assets. Tugwell v. Heyman (1812), 3 Camp. 298, 13

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R. R. 810; Rogers v. Price (1829), 2 Y. & J. 28; Corner v. Shaw (1838), 2 M. & W. 350, 7 L. J. (N. S.) Ex. 105. But an executor may render himself personally liable. Brice v. Wilson (1834), 8 Ad. & El. 349 n. (c.), 3 Nev. & M. 512, 3 L. J. (N. S.) K. B. 93.

An executor who permits judgment to go by default, will be taken to have admitted assets. Skelton v. Hawling (1749), 1 Wils. 258 ; Re Higgin's Trust (1861), 2 Giff. 562, 30 L. J. Ch. 405, 7 Jur. N. S. 403. In an administration action in which the executor was defendant, he was served with notice of motion to pay into Court moneys shown by an affidavit to have been received by him. The defendant did not appear, nor did he file any evidence. This was taken to be a sufficient admission that the money was in his hands, and he was ordered to pay the same into Court. Freeman v. Cox (1878), 8 Ch. D. 148, 47 L. J. Ch. 560, 26 W. R. 689. This decision is not to be extended; Neville v. Matthewman (C. A. 1894), 1894, 3 Ch. 345, 63 L. J.Ch. 734, 71 L. T. 282, 42 W. R. 675. In Payne v. Tanner (1886), 55 L. J. Ch. 611, 55 L. T. 258, 34 W. R. 714, an executor was fixed with liability on the footing of an admission of assets from a letter and payment of interest to a tenant for life. An admission that a debt is just and should be paid as soon as the executor could, is not sufficient to charge him with assets; Hindsley v. Russell (1810), 12 East, 232, 11 R. R. 373. Payment of interest on a legacy is primâ facie evidence of assets ; Parry v. Huddleton (1854), 18 Jur. 992. So too payment of interest commencing six years after the testator's death and continuing for seven years was held an admission sufficient to charge the executor personally, on the ground that he had ample time to ascertain the state of the assets before he made the first payment of interest. Attorney General v. Chapman (1840), 3 Beav. 255, 10 L. J. Ch. 90.

A devastavit can only be committed at law in respect of assets actually received; see Blount v. O'Connor and other cases cited in notes to Seaman v. Dee, No. 1, p. 321, ante. An executor cannot in general be charged as upon an admission of assets, for moneys appearing in the accounts filed for revenue purposes. Stearn v. Mills (1832), 4 B. & Ad. 657, 1 Nev. & M. 436, 2 L. J. (N. S.) K. B. 106. But if items mentioned in that account are shown to have been received, the burden of proof is shifted upon the executor, who has then to discharge himself from the assets. Young v. Cawdrey (1819), 8 Taunt. 734, 8 Moore, 66, 21 R. R. 523.

In Foster v. Blakelock (1826), 5 B. & C. 328, 8 Dowl. & Ry. 48, 4 L. J. (O.S.), K. B. 170, the probate stamp was regarded as primâ facie proof of assets covered by the duty, but that case was criticised in Stearn v. Mills, supra, and is dissented from by Lord WENSLEYDALE, who was then a Justice of the King's Bench. The injustice of the

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decision in Foster v. Blakelock is pointed out by LITTLEDALE, J., in Stearn v. Mills, in that the Stamp Act then in force required payment of duty on the whole estate, without deducting anything on account of the debts due from the deceased. It is doubtful whether Foster y. Blakelock can be regarded as an authority for more than this, that, coupled with other circumstances, it may form a link in the chain of evidence to prove an admission of assets, Mann v. Lang (1835), 3 Ad. & El. 699, 5 Nev. & M. 202, 4 L.J. (N. S.) K. B. 210; Lazonby v. Rawson (1854), 4 De G. M. & G.556, 24 L. J.Ch. 482, 1 Jur. N. S. 289; Hutton v. Rossiter (1854, 1855), 7 De G. M. & G. 9, 24 L.J. Ch. 106. Under the Finance Act 1894 (57 & 58 Vict. c. 30), duty is paid in respect of moneys which the executors are not entitled to receive, ss. 2 & 4.

By the Statute of Frauds (29 Car. II. c. 3), s. 4, it is provided: "No action shall be brought whereby to charge any executor or administrator upon any special promise to answer damages out of his own estate, or whereby to charge the defendant upon any special promise to answer for the debt, default, or miscarriages of another person, ... the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person by him thereunto lawfully authorized." The question whether this section applies is to be determined by considering whether the undertaking of the executor is a primary obligation or merely collateral; Birkmyr v. Darnell (1705), Salk. 27, 1 Smith Lead. Cas. Thus upon a liability for rent accrued in the lifetime of the deceased the judgment would be de bonis testatoris, but for use and occupation by his representative the judgment would be de bonis propriis ; Wigley v. Ashton (1819), 3 B. & Ald. 101, 22 R. R. 316. The liability of an executor for rent accruing in his own time may be thus summarized. If the executor be sued in his representative capacity whether the demise be by deed or parol, he is only liable if the land yields a profit or he has assets. Whatever profits the land yields must be applied in discharge of the rent as far as it is sufficient for that purpose. Dean & Chapter of Bristol v. Guyse, 1 Wms. Saund. 126, note (e); Rubery v. Sterens (1832), 4 B. & Ad. 241, 1 Nev. & M. 282, 2 L.J. (N. S.) K. B. 46. The liability of the executor to this extent exists although it is not shown that he has entered. Bolton v. Canham (1676), Pollexf. 125, 1 Vent. 271. An administrator of an original lessee continues liable after assignment. Coghill v. Freelove (1690), 2 Vent. 209. Where the executor is sued in respect of his occupation, whether the original demise be by deed or parol, the executor is only liable to the extent of the value of the land, and the residue of the landlord's demand must be against the assets of the deceased ;

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