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 against him, and judgment accordingly, it operated as an admission of 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 testatora, 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 detertermining as between those parties, that the personal representatives had assets to pay the debt. But mere submission to

z Erving v. Peters, 3 T. R. 685.

a Cleverly v. Brett, B. R. 11 G. 3. cited in Pearson v. Henry, 5 T. R. 8. See 2 Ves. 85.

b Barry v. Rush, 1 T. R. 691.

c Worthington v. Barlow, 7 T. R. 453.

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."

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.

A probate stamp is primâ facie evidence that the executor has received assets to the amount covered by the stamp.

VII. Of Actions by Executors and Administrators.

1. 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 (33) 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. 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,

d Pearson v. Henry, 5 T. R. 6.

e Foster v. Blakelock, 5 B. & C. 328.

f Smith v. Colgay, Cro. Eliz. 384.

(33) "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.

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 (34). 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 and 3 Edw. 6. c. 13. for not setting out tithes due to the testatori; or an action on the case against the sheriff for a false return made in the life of the testator to a fi. fa. viz. that he had levied only so much, part whereof he had sold, and part remained in his hands for want of purchasers*; or an action of debt on a judgment against an executor, suggesting a devastavit in the lifetime of plaintiff's testator'. In like manner, it has been holden, that an administrator may maintain an action against the bailiff of a liberty for executing a fi. fa. and removing the goods off the premises, before the landlord (the intestate) was paid a year's rent, pursuant to the stat. 8 Ann. c. 17. But an executor shall not have trespass de clauso fracto"; for moritur cum persona illa actio.

One of two executors having alone proved the will, had received a debt due to the testator, which by his will was appropriated to the payment of specific legacies to his grandchildren with interest thereon, and afterwards permitted the money to be lent out to a third person, by whom it was paid to A. A. on being applied to by the executor, acknowledged that he had received the money, and that it belonged to the testator's grand-children, but refused to pay it over to the executor. It was holden, that both executors might join in an action brought to recover the money against A. It was holden also, that it does not amount to a devastavit, if an executor lends out, on private security, money belonging to the testator, but not wanted for the immediate uses of the will, provided he exercises a fair and reasonable discretion on the subject.

By stat. 11 Geo. 2. c. 19. s. 15. "Executor or administrator of tenant for life, on whose death any lease of lands, &c. determined, shall, in an action on the case, recover from the

g 4 Leon. 15. Case 53. cited in Le Ma-
son v. Dixon, Sir W. Jones, 174, 5.
h Rutland v. Rutland, Cro. Eliz, 377.
i Moreton's case, 1 Ventr. 30.

k Williams v. Grey, Lord Raym. 40.

1 Berwick v. Andrews, Ld. Raym. 973.
m Palgrave v. Windham, Str. 212.
n Bro. Exors. 120.

o Webster v. Spencer, 3 B. & A. 360.

(34) Ejectio firme will lie at the suit of an executor for the ouster of his testator. 7 H. 4. 6. b. Bro. Abr. Exor. 45. S. C.

under tenant a proportion of the rent reserved, according to the time such tenant for life lived of the last year, or quarter of a year, or other time in which the said rent was growing due."

By the common law, an executor or administrator could not have an action of account; because it was founded on a matter in the privity of the testator; but now, by stat. 13 Edw. 1. c. 23. "An executor shall have an action of account upon an account with his testator."

By 25 Edw. 3. stat. 5. c. 5. "Executors of executors shall have actions of debts, accounts, and of goods carried away of the first testators, in the same manner as the first testator should have had."

Administrators derive their authority to bring actions from the stat. 31 Edw. 3. 11. which provides, that "where a man dies intestate, the ordinary shall depute the next and most loyal friends (35) to administer his goods, which deputies may bring actions to demand and recover, as executors, the debts due to the intestate."

An administrator cannot have an action for a breach of promise of marriage to the intestate, where no special damage is alleged.

2. Executors and Administrators must join in bringing Actions. It is a general rule, that, if there are two or more executors, and one proves the will, they must all join in bringing actions; and if they do not the defendant may plead in abatement, that there are other executors living not named. In this plea it is not necessary to aver, that the executors not named have administered'; because they may administer at their pleasure. So where there are two or more administrators, it is necessary that they should join in bringing actions.

And this rule, viz. that all the executors shall join, holds even where some of them refuse before the ordinary"; be

p 2 Inst. 404.

q Chamberlain v. Williamson, 2 M. & S. 408.

r Reg. 140. b. Bro. Exors. pl. 69. Fitz. Abr. Exors. pl. 48.

s 41 E. 3. 22. a.
t Reg. 140. b.

u Hensloe's case, 9 Rep. 36. b.

(35) A subsequent statute, 21 H. 8. c. 5. s. 3., in case of intestacy or executors refusing to prove, directs the ordinary to grant administration to the widow or next of kin; and where two or more stand in equal degree, to accept which he pleases.

cause the refusing executors may come in at any time, and administer, notwithstanding their refusal, either during the lives of their co-executors, who have proved, or after their death'.

The like law is, where some of the executors are infants; they must all join, and they may all appear by attorney: for those of full age may appoint an attorney for those within age. So where there are two executors, one of full age, and the other within age; and the executor of full age is appointed administrator, durante minori ætate of the other

executor.

A. made B. and C., who was an infant under seventeen, executors; B. only proved the will and brought debt as executor against defendant (omitting C.) Plea in abatement, that C. was made an executor with B., and is yet in full life, not named', &c. Replication, that C. was of the age of one year, that B. proved the will, and had administration committed durante minori ætate, and that C. is still under seven years of age. On demurrer, judgment for defendant; for, although by the administration committed durante minori ætate, B. hath the full power, yet C. the infant, being executor, ought to be named."

3. Of joining several Causes in one Action by Executors (36). In order to join several causes in one action, the action must be brought as to all such causes in the same right (37). Hence, a plaintiff cannot join, in the same action, a demand, as executor or administrator, with another demand, which accrued in his own right. The reason is, because the funds, to which the money and costs, when recovered, are to be applied, or out of which the costs are to be paid, are different; and the damages and costs being entire, the plaintiff cannot distinguish how much he is to have in his representative character, and how much he is to hold as his own.

x Bro. Exors. 117. Fitz. Abr. Exors. 26. z Foxwist v. Tremain, 2 Saund. 212. y 21 Edw. 4.23 b. 24. a. recognised by a Smith v. Smith, Yelv. 130. 1 Brownl. Holt, C.J. in Wankford v. Wankford, 101. S. C. Salk. 307.

(36) "The cases on this subject are somewhat perplexed." Ld. Ellenborough, C. J. 3 East, 110.

(37) In Petrie v. Hannay, 3 T. R. 659. Buller, J. said, that it was the constant practice to join in the same declaration a count for mohad and received to the use of the executor as such, and a count for money had and received to the use of the testator.

ney