of term,) was preferred in the order of payment to the judgments; and the executrix protected and indemnified in paying obedience to such decree, and all proceedings against her at law stayed by injunction. Morrice V. The Bank of England. Decreed first at the Rolls by Sir Joseph Jekyll, Aug. 1735, which decree was affirmed by Lord Talbot, C. Nov. 1736, and Lord Talbot's decree was afterwards affirmed in parliament†, May 24, 1737. See also Shafto v. Powell, 3 Lev. 355. A (24) This must be understood of recognisances and statutes forfeited, where the recognisances are for keeping the peace, good behaviour, &c. and the statutes are for performing covenants, &c. recoguisance not enrolled was considered in Bothomley v. Fairfax, 1 P. Wms. 334. as a bond (the sealing and acknowledging of the recognisance supplying the want of delivery), and to be paid as a specialty debt. (25) Arrears of rent on a parol lease, which is determined, are in equal degree with a bond debt; because the contract remains in the realty, though the term be determined. Newport v. Godfrey, 3 Lev. 267. and 2 Ventr. 184. See an exposition of this case by Holt, C. J. in Cage v. Acton, Ld. Raym. 516. (26). A debt due for rent reserved upon a demise by deed, or by parol, is in equal degree with a bond debt. Gage v. Acton, Carth. 511. (27) A bond with a penalty conditioned for the payment of a less sum of money on a day, not arrived at the death of testator, may be pleaded by his executor as a specialty debt §, as well as a forfeited bond; but there is this distinction between them, that in the case of a bond forfeited, the penalty is the legal debt, and assets may be covered to that amount; but in the case of a bond not forfeited, as the executor by discharging it may save the penalty, the assets can be covered only to the amount of the sum mentioned in the condition. Where there are several debts by specialty, all due and payable at the death of the testator, if suit is not commenc ed by any of the creditors, and notice thereof given to the executor, he may give the preference to whom he pleases, and if he be a creditor himself, he may pay himself first. Went. Off. Exor. c. 12. Any voluntary bond is good against an executor or administrator, unless some creditor be thereby deprived of his debt. Indeed, if the bond be merely voluntary, a real debt, though by simple contract only, shall have the preference; but if there be not any debt, then a bond, however voluntary, must be paid by an executor. (28) Covenants running with the land are binding on the executors, although not expressly named. See Went. Off. of Exors. p. 178. ed. 1763. (29) See Yeomans v. Bradshaw, Carth. 373. Ca. Temp. Talb. 217. 44 Bro. P. C. 287. ed. Fo. 2 Bro. P. C. 465. Tomlin's ed. Brown v. Holycak, Barn. 290. Lemun. Fooke, 3 Lev. 57. | Bank of England v. Morrice, 1028. VI. Admission of Assets (30). WHILE an executor is passive, he is chargeable only in respect of the assets; but if he promises to pay a debt of the testator at a future day, he thereby makes it his own debt, and it shall be satisfied by his own goods. A judgment against an executor by default is an admission of assets to satisfy the demand; and if a fi. fa. be sued out on such judgment, and the sheriff cannot find goods of the testator sufficient to answer the demand, the sheriff may return a devastavit. The preceding case has been considered as a leading case on this subject: hence, where A. having executed a bond for the payment of a sum of money at her death; and the defendant having brought an action on the bond against the plaintiff as the executor of A. who pleaded non est factum, which was found against him, and judgment thereon: on a bill filed by the plaintiff to have the bond and judgment set aside, Lord Hardwicke, C. being of opinion, that the bond was good, it became a question, whether the plaintiff was not entitled to relief, on the ground that there was a deficiency of assets. Lord Hardwicke decided, that the plea of non est factum, and verdict thereon, amounted to an admission of assets; and that the case was the same with the preceding case of a judgment by default. So where in debt in the detinet against defendant (as exe o Per Yelverton, J. in Goring v. Goring, Yelv. 11. p Rock v. Leighton, from Holt's MSS. 3 T. R. 690. Salk. 310. S. C. but not accurately reported. q Ramsden v. Jackson, 1 Atk. 292. r Skelton v. Hawling, Wils. 258. and MSS. See also Saund. 219. d. where this case is correctly stated by Serjt. Williams, who examined the roll. (30) All sperate debts, mentioned in the inventory, shall be deemed assets in the executor's hands; but the executor may discharge himself by shewing a demand and refusal of them. Shelley's case, per Holt, C. J. Salk. 296. In the inventory, which the defendant had exhibited in the ecclesiastical court, were inserted several debts due and outstanding, which defendant charged herself with when received or recovered: Lord Hardwicke, C. J. put the defendant on proof, that she could not recover those debts; for she ought in her inventory to have set forth which debts were sperate and which desperate. The defendant proved by a witness who went to demand several of them, that he could not recover them; and accordingly they were allowed as desperate. Smith v. Davis, Middlesex Sittings after M. T. 10 G. 2. MSS. cutor of A. administratrix of B.) upon a judgment by des fault, obtained by plaintiff against A. as administratrix, sug gesting that goods of the intestate had come to the hands of A. as administratrix, which she had wasted; defendant pleaded, 1. Non detinet, on which issue was joined; 2dly, that defendant had fully administered the goods of A. Replication, that the defendant had goods of A. sufficient to satisfy, &c. and issue. The jury on the last issue found assets of A. in the hands of defendant. On the other issue, the plaintiff produced the judgment by default against A., on which he relied as evidence of assets admitted by A., and a devastavit by A. Lee, C. J. (delivering the opinion of the court) said, that he could not do it better than in the words of Holt, C. J. in Rock v. Leighton. Having read that case from Holt's notes, he observed, that it appeared from that case, that if an executor will not take advantage by pleading, but suffers judgment to go by default, such judgment is an admission of assets, and is as strong against an executor, as if assets were found by verdict on a plene administravit; and, notwithstanding the objection, which had been raised on the ground of the statutes 30 Car. 2. c. 7. (31) and 4 & 5 W. & M. c. 24. s. 12. he was clear, that the action in the case then before the court was well brought. On the authority of the preceding cases of Rock v. Leighton, Ramsden v. Jackson, and Skelton v. Hawling, it was holden', that where an executor (to an action of debt on bond) had pleaded payment, which was found againt him, and judgment accordingly, it operated as an admission of s Erving v. Peters, 3 T. R. 685. (31) By stat. 30 Car. 2. c. 7. s. 2. (made perpetual and enlarged by 4 & 5 W. & M. c. 24. s. 12.) "The executors and adminis"trators of executors of their own wrong, or administrators who "have wasted and converted the assets of the deceased to their "own use, shall be chargeable in the same manner as their testa"tor or intestate would have been if living." A doubt having arisen upon the preceding clause, whether it extended to the executors and administrators of any executor or administrator of right, who, for want of privity, were not before answerable for the debts due from the first testator or intestate, although such executor or administrator of right had been guilty of a devastavit or conversion, it was enacted by stat. 4 & 5 W. & M. c. 24. s. 12. “that the exe"cutor and administrator of such executor or administrator of right, who should waste or convert to his own use the estate of "his testator or intestate, should be chargeable in the same manner as his testator or intestate would have been." assets: and a writ of fi. fa. having been sued out on the judgment, to which the sheriff had returned a devastavit, and an action having been brought against the executor on the judgment suggesting a devastavit; it was holden, that the production of the record of the judgment, the writ of fi. fa., and the sheriff's return, was sufficient evidence to support the action. If an executor pay interest on a bond due from his testatort, it will not conclude him from alleging want of assets to pay the principal, but it relieves the creditor from the necessity of proving assets, and throws the onus on the other side. Where defendant binds himself as administrator", to abide by an award touching matters in dispute between his intestate and another, and the arbitrator awards, that defendant as administrator shall pay a certain sum, it operates as an admission of assets between those parties, and defendant cannot plead plene administravit to an action of debt on the bond; because the giving such bond is an undertaking to pay whatever the arbitrator may award. And in such case, if an attachment be moved for against the administrator*, for the nonpayment of the money awarded, he cannot defend himself against it, by suggesting a deficiency of assets; for a submission to arbitration by a personal representative is considered as a reference, not only of the cause of action, but also of the question, whether or not he has assets. And when the arbitrator awards that the personal representative do pay the amount of the plaintiff's demand, it is equivalent to determining, as between those parties, that the personal representative had assets to pay the debt. But mere submission to arbitration is not of itself an admission of assets"; for in a case where the arbitrator only ascertained the amount of the demand, without ordering the administrator to pay it, it was holden, that the administrator might plead plene administravit. Cleverly v. Brett, B. R. 11 G. 3. cited in Pearson v. Henry, 5 T. R. 8. See 2 Ves, 85. u Barry v. Rush, 1 T. R. 691. VII. Of Actions by Executors and Administrators. 71. What Actions may be brought by Executors and Administrators. By the common law, executors might have maintained actions to recover debts due to their testator, but they could not maintain actions for a wrong done to their testator in his life-time; e. g. a trespass in taking his goods, &c. But by stat. 4 Edw. 3. c. 7. reciting, that in times past executors had not had actions for a trespass done to their testators, as of the goods of the said testators carried away in their life, it is enacted, "that the executors in such cases "shall have an action against the trespassers (32) in like manner as they, whose executors they are, should have "had if they were living." This statute has been expounded largely, with respect to the persons and the actions. and the actions. With respect to the persons, it has been holden, that an administrator is within the equity of this statute, and shall have trespass for goods carried away in the life-time of the intestate. With respect to the actions, it has been resolved, that where, upon a church becoming void, the bishop collated wrongfully, and the patron died, the executor of the patron might, by the equity of this statute, maintain a quare impedit (33). So an executor may have an action of trover for the conversion of the testator's goods in his life-time; or an action of debt on stat. 2 & 3 Edw. 6. c. 13. for not setting out tithes due to z Smith v. Colgay, Cro. Eliz. 384 a 4 Leon. 15. Case 53. cited in Le Masou v. Dixon, Sir W. Joues. 174, 5. b Rutland v. Rutland, Cro. Eliz. 377. (32) This act does not speak of actions of trespass, though the instance put is proper for such an action; but it speaks of actions for a trespass done to the testator's goods, and it enacts that in such cases executors shall have an action against the trespasser ; apparently using the word trespass, as meaning a wrong done generally, and the trespassers as wrong doers; it does not specify the nature of the action." Per Lord Ellenborough, C. J. in Wilson v. Knubley, 7 East, 134, 5. See also the opinion of Lawrence, J. to the same effect, 7 East, 136. "This statute is a remedial law, which has always been taken by equity, and wherever there is a matter of property in question, it is brought within the statute." Per Powell, J. Ld. Raym. 974. (33) Ejectio firme will lie at the suit of an executor for the euster of his testator. 7 H. 4. 6. b. Bro. Abr, Exor. 45. S. C. |