their testator as lessee, who had covenanted for himself, his executors and assigns, may be joined another count, charging them, that after the testator's death, and their proving the will, and during the term, the demised premises came by assignment to one D. A., against whom breaches were alleged; and concluding, that so neither the testator, nor the defendants after his death, nor D. A. since the assignment to him, had kept the said covenant, but had broken the same (k). 3. What Executors are to be made Defendants.-It has been observed (ante, p. 788) that in actions brought by executors, it is necessary that, where there are two or more, they should all join, whether they administer or not, if one of them has proved the will. But this is not necessary when actions are brought against them (7); for the mere circumstance of a person being named executor does not compel the plaintiff to make him a defendant, unless he has administered. Hence, where executors, defendants, plead in abatement, that there are other executors not named, they must add, that the executors not named have administered; for the plaintiff is bound to take notice of such executors only, as have administered (m). Although executors cannot sever in declaring, yet they may in pleading. Hence, although infant executors may sue by attorney with executors of full age, because those of full age may appoint an attorney for those within age, yet they must defend by guardian (n). If any of the executors die, actions must be brought, not against the surviving executors and the executors of the deceased executors, but against the surviving executors only (o). If there are two or more administrators, they must all be made defendants (p). An executor de son tort must be declared against as a rightful executor (q). In an action against a married woman executrix, the husband must be joined as a defendant (r). IX. Of the Pleadings,—Right of Retainer. An executor may plead the same plea in bar, that his testator might have pleaded; as, in an action of assumpsit, he may plead, that his testator did not undertake or promise; or in covenant, or debt on bond, that it is not the deed of the testator (s). He may also plead in bar, that he has fully administered all the goods and chattels which were of the deceased at the time of his death. is termed a plea of plene administravit. (k) Wilson v. Wigg, 10 East, 313. (1) Bro. Exors. pl. 69. (m) Swallow v. Emberson, 1 Lev. 161; Ryalls v. Bramall, 1 Exch. 734. (n) Frescobaldi v. Kinaston, 2 Str. 783; Fitz. Abr. Exor. 22. (o) 4 Leon. 193; Bro. Exors. 99; Fitz. This Abr. Exor. 22. Unless the executor of 1 Roll. Abr. 928, tit. Executors (Z). (q) Alexander v. Lane, Yelv. 137. A testator being indebted to R., deposited with him a policy of insurance on testator's life, as a security for the debt, or for a further advance then made by R., and died, leaving R. and M. his executors. R., still holding the policy, applied to the insurers for the amount due on it (2007.); which they refused to pay, unless R. and M. gave a receipt for it as executors. They did so; R. making protest that he signed as executor, merely to satisfy the insurers. In an action by a judgment creditor, to which the executors pleaded plene administraverunt, except as to 41. (the surplus out of the 2007. after payment to R.), it was held, that the executors were not chargeable with the 2007. as assets, but only with the surplus after payment to R. (t). An executor must plead an outstanding debt, e. g. a judgment, and cannot give it in evidence under plene administravit (u). In this plea it is not necessary for the executor to aver that the judgment was had for a true and just debt; for, if it be not so, this shall come from the other side (x). So where an executor pleaded, that his testator entered into a bond conditioned for the payment of a sum of money at a day past, beyond which he had not assets; it was held sufficient, although it was not averred that the bond was entered into for a true and just debt; for it shall be intended that it was (y). And the same intendment shall be made, where an executor or administrator pleads a bond debt due to himself and retainer (z). When the day of payment, mentioned in the condition of the bond, is past in the lifetime of the testator, the penalty is the legal debt; and although an executor, in pleading it as an outstanding debt, sets forth the condition of the bond, yet that will not deprive him of the advantage of covering the assets to the amount of the penalty (a). But, when the day of payment is not arrived at the death of the testator, if the executor sets forth the condition, the assets can be covered only to the amount of the sum mentioned in the condition; for the force of the bond is suspended until the condition is broken (b). To an action of debt on bond for 3007. against defendant, as executor, he pleaded that the testator was bound in a statute for the same sum, and that he had assets to the amount of 807. only, to satisfy that statute, which remained yet in force and not paid. On demurrer, it was objected, that it was not averred in the plea, that the statute was made for debt, and that the debt was not satisfied; for, if it were for the performance of covenants, it was not reasonable that it should be a bar to a (t) Glaholm v. Rowntree, 6 A. & E. 710. (z) Picard v. Brown, 6 T. R. 550. for the plaintiff may, it seems, reply that the creditor would have accepted a less sum, but that the defendant would not pay it, and kept the judgment on foot by fraud, and under this plea may give evidence of such matter as will avoid the penalty. Wms. Exors. 1776 (5th edit.). (b) Bank of England v. Morice, 2 Str. 1028. debt on a bond already due, when, perhaps, the covenants would never be broken (c), in which case there would not be any cause of suit or extent thereon. But the court resolved, that the plea was good; for it was averred that the statute was in force, and the money not paid; it was good enough primá fucie; and it should be intended to be made for a just debt, until the contrary was shown (d). If an action be brought against several administrators, they may plead an outstanding judgment recovered against one of them, and no assets ultra; for a recovery against one administrator shall bind him and his companions (e). After the commencement of an action, an executor cannot pay another creditor before such other creditor has recovered judgment, but the executor may confess judgment in another action for the damages laid in the declaration, without ascertaining those damages by writ of inquiry, provided they do not exceed the real debt. If they do, the plaintiff may reply that such judgment was not for a true and just debt (f). An executor may confess a judgment to a creditor in equal degree with the plaintiff, pending the action, and plead it in bar (g). But if a plea of judgment recovered on a simple contract, be pleaded by an executor to a debt on bond, it must be averred, that such recovery was had before notice of the bond debt (h). So an executor may plead puis darrein continuance (i), judgments recovered against him in suits commenced since he pleaded the general issue in bar in the principal case (k). But a judgment confessed by an executrix to a creditor of the testator, as well for his own debt as in trust for the debt of other creditors, cannot be pleaded in bar to an action brought against her by another creditor of the testator (1). To a plea of an outstanding judgment, the plaintiff may reply, that the judgment was obtained by fraud; and may upon this issue give in evidence, either that the debt is not a just one, or that less is due than the sum for which the judgment has been given (m). But evidence of the latter fact is not conclusive of fraud, for the judgment might have been entered for more than was due by mistake (n). If it appear that the judgment creditor would have taken less than is recovered, that is evidence of fraud; but the executor (c) It was agreed that a statute for performance of covenants was not a bar in debt on bond, if none of the covenants were broken. Neither is it to an action on simple contract. Collins v. Crouch, 13 Q. B. 542. (d) Philips v. Echard, Cro. Jac. 8. (e) Further v. Further, Cro. Eliz. (471). (f) Waring v. Danvers, 1 P. Wms. 295; 10 Mod. 496; 3 P. Wms. 401. (g) Waring v. Danvers, supra; Morrice v. Bank of England, Ca. Temp. Talb. 225. Executors are bound to take notice of (k) Prince v. Nicholson, 5 Taunt. 665. (n) Pease v. Naylor, 5 T. R. 80. In this case the defendant had informed the plaintiff of that fact before action. may show, in answer, that he has not assets sufficient to satisfy even that amount, for that disproves the fraud (0). Where the Statute of Limitations is pleaded to an action brought by an executor on a promise made to his testator, the six years are computed from the time when the action first accrued to the testator, and not from the time of proving the will (p). But where money belonging to the estate of an intestate is received by A. after the death of the intestate, and, more than six years afterwards, B. takes out administration, the time of limitation must be computed from the day on which the administration was granted; and, consequently, if B., within six years from that day, brings an action for money had and received against A., the Statute of Limitations will not operate as a bar (q). So in an action by an administrator upon a bill of exchange, payable to the intestate, but accepted after his death, the Statute of Limitations begins to run from the time of granting the letters of administration, and not from the time the bills become due, there being no cause of action until there is a party capable of suing (r). "Where letters of administration have been granted, the administrator is entitled to all the rights which the intestate had at the time of his death vested in him; but no right of action accrues to the administrator, until he has sued out the letters of administration" (s). For the Statute of Limitations, and the decisions thereon, see ante, p. 153 et seq. As to the proper mode in which an executor of an executor should frame his plea, the following case deserves attention:— Plaintiff, assignee of lessee for years, sued the defendant as executor of B., executor of A., the lessor, in covenant upon the original indenture of lease, for a breach of the covenant for quiet enjoyment by A., and since his decease by defendant. The defendant pleaded, that he had fully administered all the goods of A., the first testator. On demurrer, it was held, that the plea was bad, inasmuch as it only gave an answer to one part of a case which pointed at two kinds of misapplication of those funds which were liable to the plaintiff's demand (t). Le Blanc, J., observed that the defendant might discharge himself in two ways: either by showing that the first executor fully administered all the goods and chattels of A. which came to his hands, and that the defendant, since the death of the first executor, had duly administered all that he had received of A.'s assets; or he might show that he had received no assets of the first executor. But, as the plea now stands, he leaves unanswered everything respecting the assets of the first testator which came to the hands of his executor, and merely answers as to his (0) Parker v. Atfield, 1 Salk. 312, per Cur. (p) Hickman v. Walker, Willes, 27. (q) Curry v. Stephenson, Carth. 335; 2 Salk. 421; 4 Mod. 372, S. C. () Murray v. East India Company, 5 B. & Ald. 204. But an executor may commence an action before probate. Wms. Exors. 260 (5th edit.). (s) Per Bayley, J., Pratt v. Swaine, 8 B. & C. 287. (t) Wells v. Fydell, 10 East, 315. own application. Bayley, J., added that the plaintiff was entitled to recover his debt in either of two events; if the defendant had received assets of the original testator, and had not properly applied them; or if the defendant had received assets of the first executor, and the first executor had received assets of his testator, and had not duly applied them. The defendant has only answered as to one of those events, but the plaintiff may be entitled to satisfaction out of both fands: and, therefore, he is entitled to have the issue so framed, that if anything be forthcoming to him out of either fund, he may be able to avail himself of it. See further as to pleading the Statute of Limitations, and Statute of Set-off, by and against executors, ante, tit. "Assumpsit," and tit. "Debt." Of the Right of Retainer (u).—A lawful executor or administrator, when sued by a creditor of the deceased, may claim a right of retaining the assets in satisfaction of a debt due to himself, provided such debt is equal or superior in degree to that claimed by the creditor (x). And it is optional with the executor either to plead the retainer, or to give it in evidence under a plea of plene administravit (y). But an executor cannot retain for a demand, of which an account can be taken by a jury, e. g. a partnership debt, and which cannot, therefore, be controverted by the other party (z). Where an action is brought against a defendant as executor (which is the case, as well where the defendant is charged as rightful executor, as when he is charged as executor de son tort), and he claims to retain as executor or administrator, he ought to allege the grant of probate (a), or administration (b), in order that it may appear to the court that he is such a person as is entitled to retain; for an executor de son tort is not so entitled (c). where the plaintiff sues the defendant as administrator, and he claims to retain as administrator, it is not necessary that the letters of administration should be set forth, because the plaintiff, by his declaration, admits him to be lawful administrator (d). But An executor de son tort cannot retain for his own debt, although of a superior nature; neither will the consent of the rightful administrator to the retainer, given after action brought by a creditor, alter the case; nor can such executor avail himself of a delivery over of the effects of the deceased to the rightful administrator after action brought, and before plea pleaded, so as to defeat the action of a creditor (e). In debt upon bond against the (u) "The rule of this court in cases of retainer is, that, unless the party can show a legal right to retain, we never give it him; if he can show a legal right, we never take it away from him." Per Verney, M. R., Chapman v. Turner, Vin. Abr. Exors. (D. 2) pl. 2. (x) Pyne v. Woolland, 2 Vent. 180; 1 Keb. 285; Sty. 337; Vaughan v. Browne, infra. (y) 1 Wms. Saund. 333, n. (6). (d) Picard v. Brown, 6 T. R. 550. |