pay, &c. he cannot plead plene ad- 31 On a plea of plene administravit, ministravit to debt on the bond. Barry v. Rush. 1 Term Rep. 691. 26 A submission to an award by an anministrator is not an admission of assets. Pearson v. Henry. 5 Term Rep. 6. 27 If an arbitrator under a reference between A., and B. administrator, award that B. shall pay a certain sum as the amount of A.'s demand, B. cannot afterwards object that he had no assets, but may be attached for non-payment. Worthington v. Barlow, Administratrix. Rep. 453: 7 Term 28 Though by the statute of frauds an executor is not liable personally, without a written promise, yet such written promise does not render him liable, at all events, unless there be an adequate consideration. Rann v. Hughes. 5 Term Rep. 350, n. 29 An executor administering, having once received money, assets of his testator, cannot discharge himself under the plea of plene administravit to an action by a bond creditor of his testator, by shewing that he paid the money over to his co-executor, even for the purpose of satisfying the bond creditor, who had applied for payment to such eoexecutor, if the co-executor afterwards misapplied the money by retaining it to satisfy his own simple contract debt. Crosse et ux. adm3rs. of Reader v. Smith & Munt, Ex'rş, of Grierson. 7 East, 246. 30 It is not enough for the executor of an executor, sued for breach of covenant made by the original testator to plead plene administravit of all the goods and chattels of the original testator at the time of his death come to hands of the defendant, &c. without also pleading plene administravit by the first execuecutor; or at least that he, the second executor, had no assets of the first ; so as to shew that he had no fund out of which any devastavit by the first executor could be made good. Wells v. Fydell. 10 East, 315. the onus probandi lies on the defendant. Platt v. Administrators of Smith. 1 Johns. Cas. 276. A former judgment by default against executors, and a fieri facias returned nulla bona are conclusive evidence of a devastavit. Ibid. The executor must defend himself in the first suit, or he will be precluded from alleging that he had no assets. Ibid. 32 On a plea of want of assets, in an action against an executor by a residuary legatee, auditors shall be appointed extempore; and it is not sufficient to object, that the executor's accounts have been before settled by a reference. 1 Dallas, 164. 2 3 4 184. III. De son tort. H. is a tort executor by taking the intestate's goods before administration, not after. Anonymous. Salk. 313. 1 What acts make a person liable as executor de son tort is a question of law; the jury are to say whether the acts be sufficiently proved. Padget v. Priest. 2 Term Rep. 97. The slightest circumstance of intermeddling with the intestate's goods will constitute a man an executor de son tort. 2 Term Rep. 97 and 597. Therefore if A., the servant of B., sell the goods of C., an intestate, as well after his death as before, though by the orders of C., and pay the money arising therefrom into the hands of B., B. may be sued as 5 6 an executor de son tort. 2 Term Rep. 597. If a person, having intermeddled in the intestate's affairs, has money belonging to him in his hands at the time when an action is brought against him as executor for a debt due from the intestate, he is liable as an executor de son tort. 2 Term Кер. 597. A creditor of an intestate, who received goods of the intestate after his death from his widow, in payment of the debt, cannot protect his possession against an action of trover by the lawful administrator, upon the ground of such delivery having been made by one who had, by such intermeddling, made herself executrix de son tort; no fact appearing to give colour to her having acted in that respect in the character of executrix, except the single act of wrong complained of, in which the defendant participated. Mountford v. Gibson. 4 East, 441. Qu. How far any payment by an executor de son tort to a creditor can be set up as a bar to an action of trover by the lawful executor, &c.; though if it be such as the latter would be bound to make, it shall be recouped in damages. Ibid. 8 If a creditor take an absolute bil of sale of the goods of his debtor, but agree to leave them in his possession for a limited time, and in the mean time the debtor die, whereupon the creditor takes and sells the goods, he will be liable to be sued as executor de son tort for the debts of the deceased; for the debtor's continuing in possession is inconsistent with the deed, and fraudulent against creditors. Edwards v. Harben. 2 Term Rep. 587. 9 An executor de son tort cannot discharge himself from an action 1 brought by a creditor, by delivering over the effects to the rightful execulor after the action is brought. Curtis v. Vernon. 3 Term Rep. 587. Affirmed in Cam. Scac. Curtis v. Vernon. 2 H. Black. 18. 2 10 Nor can he retain for his own debt of an higher nature by consent of the rightful executor, given after the bringing of the action by the creditor. 3 Term Rep. 587. 11 Nor can he plead that such delivery over and retainer were after action brought, but before plea pleaded; though, in fact, no administration was granted until after the action was brought. 2 H. Black. 18. 12 A creditor of an intestate, having recovered judgment against his estate in the hands of an executor de son tort, cannot extend his execution, issued upon such judgment, on the land of which the intestate died seized. Mitchel v. Lunt. + Mass. 654. 13 To a declaration against A. as executor of B., the defendant pleaded in abatement, that A. died intestate, and letters of administration were afterwards granted to the defendant, &c. The plaintiff replied, that previous to granting the letters of administration, the defendant made himself executor de son tort, &c. &c. On demurrer, the replication was held to be bad, and the declaration was quashed. Rattoon and another v. Overacker, executor of Craig. 8 Johns. Rep. 126. Taking out letters of administration made legal all acts which were before tortious. Ibid. If a person who is sued as executor de son tort, takes out administration pending the suit, though it will not defeat the suit, which was well com menced, yet it will legalize all intermediate acts, ab initio, aud justify a retainer. Ibid. IV. Preference in payment of debts. Executor may pay debts of a higher nature after a decree quod computet, not after final. Mason v. Williams. In Chancery. 2 Salk. 507. Mortgages and judgments, to be paid by sale of lands and bonds and debts on simple contract out of the personal estate. Anonymous. 3 Salk. 83. 3 If a bond be given by the husband 9 on a simple contract. Steele v. Pull. 307. And on a plea of plene administravit to debt on such a judgment, the defendant may give in evidence payment of specialty debts which exhausted all the assets. 6 Term Rep. 384. 7 Debt ou bond against an adminis- 10 aver that such recovery was had before notice of the bond debt. Sawyer v. Mercer. 1 Term Rep. 690. To assumpsit against an executrix she pleaded that the testator became bound to A. in 280ol. conditioned (among other things) to in-demnify him against another bond for 800l. which A. had executed jointly with the testator to B., but for the proper debt of the testator; that the 800l. became due in the testator's life, and was still unpaid; that upon the testator's death the indemnity bond became forfeited, and the money therein contained was still unpaid; and that the defendant had administered all (except so much as would satisfy the indemnity bond); this was held a good plea. Cox v. Joseph. 5 Term Rep. 307. In the above case the plaintiff might have taken issue on the allegation in the plea that the original bond for 8001. became due and payable in the lifetime of the testator. 5 Term Rep. 309. 11 The order prescribed to executors, &c. for the payment of debts, respects voluntary and not compulsory, payments. 2 Dallas, 263. 12 Executors have an unquestionable right, generally speaking, to give the preference to any creditor of the same degree: under what circumstances the court will not direct them to plead without the usual imparlance. 2 Dallas, 260, 1, 2, 3. V. Probate or Letters of Administration, when necessary, and their effect. cent and another. Old Bailey. 1 Str. 481. 4 The bishop, or archbishop, has no private power respecting granting administration bond. It must be granted ex debito justicia, or 'refused according to circumstances. Archbishop of Canterbury v. House. Lofft, 622. The legal act of the official, is the act of the bishop to this purpose, though without his knowledge, or even against his private inclination. Ib. 5 A simple contract debt owing to a man who dies intestate is bonum notabile, in the place in which the debtor was resident at the time of the death of the intestate, and of the commission of administration. Hillard v. Cox. 1 L. Raym. 562. 1 Salk. 37. • Probate is necessary before a will of personal property of a feme covert, authorised by a power, can be given in evidence. Stone v. Forsyth. 2 Doug. 707. 7 An executor's right is derived from the will; the probate is only evidence of it: therefore he has a constructive possession from the testator's death. Smith & al. Assignees of Clarke, v. Milles. 1 Term Rep. 480. 8 A probate, as long as it remains unrepealed, cannot be impeached in the temporal courts. ́Allen v. Dundas. 3 Term Rep. 125. 9 Payment of a debt to an executor, who has obtained a probate of a forged will, is a discharge to the debtor of the intestate, notwithstanding the probate be afterwards declared null, and administration be granted to the intestate's next of kin. 3 Terin Rep. 125. 10 The only way of proving a right to personal property under a will is by the probate. R. v. The Inhabitants of Netherseal. 4 Term Reports, 258. 11 The administratrix of an executor cannot sue for the double value of lands held over, after notice to quit under a demise from the testator contrary to 4 G. 2, c. 8, without taking out administration de bonis non: even though the tenant has attorned to her. Tingrey v. Brown. 1 Bos. & Pull. 310. 12 The authority of an administrator appointed according to the provisions of 38 G. 3, c. 87, during the absence of an executor from this country, does not become actually void upon the death of such executor, but only voidable. Taynton v. Hannay. 3 Bos. & Pull. 26. 13 The original book of acts, directing letters of administration to be granted, with the surrogate's fiat for the same, is evidence of the ti tle of the party to whom the administration is directed to be granted of the intestate's effects, without producing the letters of administration themselves; notwithstanding subsequent letters of administration granted to another; the first not being recalled. Elden v. Keddell. 8 14 East, 187. A payment of a debt to an administratrix de facto is sufficient; though the letters of administration were afterwards recalled. Ibid. 15 The grant of an original administration more than twenty years after the death of the intestate is ipso facto void. 2 Mass. 120. 16 Letters of administration granted by the Archbishop of York in England, are not a sufficient authority to maintain an action here. 1 Dallas, 456. 17 An action may be maintained here by an administrator, upon letters of administration issued in a sister state. 4 Dallas, 292. 18 An administrator, having had letters of administration in Maryland, before the separation of the district of Columbia from the original states, cannot, after that separation. maintain an action in that part of the district ceded by Maryland, by virtue of those letters of administration must take out new letters within the district. Fenwick v. Sears. 1 Cranch, 259. 19 It is not necessary in a bill in equity by executors, that they should set forth their letters testamentary. Telfair v. Stead. 2 Cranch, 408. 20 Upon the death of the plaintiff, and appearance of his executor, the defendant is not entitled to a continuance; but he may insist on the production of the letters testamentary before the executor shall be permitted to prosecute. Wilson v. Codman. 3 Cranch, 193. 21 An executor cannot maintain a suit in the district of Columbia, upon letters testamentary granted in a foreign country. Dixon v. Ramsey. 3 Cranch, 319. Nor in the case of actions, if after judgment. Ibid. 415. 3 An extent cannot be antedated, but In must bear teste at the day it issues, though it be out of term; for it issues out of the equity side of the exchequer, which is always open; the writ vill be superseded on motion as irregular if antedated. Oyer of the Baron's fiat cannot be had, but, being upon the writ, the court are bound to take notice of it. a proceeding upon an extent test'ed 6th July, against the surety of a debtor of the crown, an inquisition taken of several goods and debts found. the defendant claims property in the debts and effects, and pleads that fiat was granted 5th October, at which time the extent in reality issued; that the surety had committed an act of bankruptcy, and had been declared bankrupt, and a provisional assignment of all his goods, debts, &c. made to defendant under the commission prior to the extent, and then traverses that, at the time of the inquisition, the persons therein named were debtors to the party, or that he was entitled to the goods meutioned in the inquisition; this traverse is proper, and neither immaterial nor double. A commission of bankruptey and assignment is a good bar to an extent at the suit of the Crown, test'ed subsequently. v. Robert Mann. In Exchequer. 2 Str. 749. |