party to bail without reasonable or probable cause, for a debt alleged to be due to their testator, are within the 43 G. 3, c. 46, s. 3 (h). If the plaintiff in an action, after having arrested the defendant, die, such arrest is no bar to a fresh arrest in an action by the executors (i). It is not necessary for the executor or administrator of an attorney, before the commencement of an action, to deliver a bill of costs for business done by his testator or intestate (*). CHAP. V. SECT. 1. and subse Declaration and subsequent Proceedings.] We have already Declaration seen how far the declaration should correspond with the pro- quent Process or affidavit to hold to bail in bailable cases (7). The de- ceedings. claration is filed or delivered in the same manner as in ordinary cases. By general rule of all the courts of R. H., 4 W. 4, r. 21, Plea "In all actions by and against assignees of a bankrupt or insolvent, or executors, administrators, or persons authorized by act of parliament to sue or be sued as nominal parties, the character in which the plaintiff or defendant is stated on the record to sue or be sued, shall not in any case be considered as in issue, unless specially denied." The defendant may bring money into court (m). If the plaintiff reside abroad, he may be compelled to give Security for security for costs as in other cases (n). Costs. The subsequent proceedings, together with the verdict, Other Propostea, judgment, and execution, are also the same as in ordi- ceedings. nary cases (o). As to scire facias by an executor, &c., to revive a judgment obtained by his testator, &c., see ante, 819. Costs.] If the verdict be for the plaintiff, he is of course Costs. entitled to costs, as in ordinary cases. Previously to the statute, 3 & 4 W.4, c. 42, s. 31, if the verdict were given for the defendant, the plaintiff in such case was not liable to costs (p), unless the cause of action accrued after the testator's or intestate's death (9), and the plaintiff might have brought the action in his own right (r). Also, previously to that act, the plaintiff was not liable to the costs of a nonsuit, unless the action were such that he might have brought it in his own (h) Post, tit. "Costs:" Feeley v. Reed, 5 B. & Ald. 515 a: Dronefield v. Archer, Id. 513; 1 D. & R. 67, S. C. (1) Mellin v. Evans, 1 C. & J. 82: ante, Vol. 1, 478. (k) Ante, Vol. I. 72. As to taxing the bill, see Id. 77. () Vol. I. 143, 144. (m) Crutchfield v. Scott, 2 Str. 796. (n) Chevalier v. Finnis, 3 Moore, 602; 1 B. & B. 277, S. C.: post, Book IV. Part I. Ch. 12. (0) See Chit. Forms, 510. (p) Nichollas v. Killigrew, 1 L. Raym. 436: Martin v. Norfolk, H. Bl. 528; Wilton v. Hamilton, 1 B. & P. 445. The reason of their not being liable was on account of the form of the statute which first gave the defendant costs not having included executors. (See per Tindal, C. J., in Wilkinson v. Edwards, 1 Scott, 174; 3 Dowl. 130; and in Southgate v. Crowley, 1 Scott, 378). (q) Bollard v. Spencer, 7 T. R. 358: Hollis v. Smith, 10 East, 293: Goldthwaite v. Petrie, 5 T. R. 234. (r) Goldthwaite v. Petrie, 5 T. R. 234: Cockerill v. Kynaston, 4 T. R. 277: Cooke v. Lucas, 2 East. 395. As in trover for a conversion after the testator's death. (Grimstead v. Shirley, 2 Taunt: 116). Even if the declaration in an action by an executor or administrator contained a count on an account stated with the plaintiff as executor or administrator, and promise to him as such, he would, if he were nonsuited, or defendant obtained a verdict, be liable to the costs even before the above act. (Dowbiggin v. Harrison, 9 B. & C. 666: Jobson v. Forster, 1 B. & Ad. 6: Slater v. Lawson, Id. 893). But, in such case, as far as the pleadings were con cerned, the defendant would be entitled to the costs of that count only. (Id.; and R. H., 2 W. 4, r. 74). PART II. BOOK III. right (s); nor to costs on judgment as in case of a nonsuit (†). He was always, even before that act, liable to the costs of a nonpros (u); and to costs upon a discontinuance (x), or for not proceeding to trial according to notice (y), if he had knowingly brought a wrong action, or been guilty of a wilful default(); otherwise not (a). And now, by that act, “in every action brought by an executor or administrator in right of the testator or intestate, such executor or administrator shall (unless the court in which such action is brought, or a judge of any of the said superior courts, shall otherwise order) be liable to pay costs to the defendant in case of being nonsuited, or a verdict passing against the plaintiff, and in all other cases in which he would be liable if such plaintiff were suing in his own right upon a cause of action accruing to himself; and the defendant shall have judgment for such costs, and they shall be recovered in like manner." As a general rule, since this statute, executors plaintiffs are liable to costs where they do not succeed; and it is incumbent on them to shew some facts, which may satisfy the court that they should be exempt in the particular case, and it is not enough to shew hardship in the case of the plaintiff, unless it be shewn that it was occasioned by the misconduct of the defendant; for the act being made for the benefit of defendants, the court will not take away that benefit unless they see clearly that the defendant has forfeited his claim to it (b). The fact that the plaintiffs were advised by counsel that a point of law, which was ultimately decided against them, was in their favour, or, at all events, that there was sufficient doubt to make it proper for the plaintiffs to take the opinion of a court of law upon it, is not sufficient (c). The conduct of the defendant in the course of the action, as, that there was greater prolixity of pleading than necessary, &c., will not be considered by the court in exercising their discretion as to relieving the executors from costs (d). But mala fides or misconduct on the part of the defendant in general will be considered (e). The discretion as to costs in actions by executors, given to the court or a judge by the above enactment, applies to those cases only where an executor, before the act, was exempt from costs(ƒ); and therefore, in assumpsit on promises to an executor, the defendant on a nonsuit is entitled to his costs as of course under the 23 H. 8, c. 15 (ƒ). The 3 & 4 W. 4, c. 42, is retro (8) See the instances mentioned in note (q), supra: Hollis v. Smith, 10 East, 293: Cockerill v. Kynaston, 4 T. R. 277: Barnard v. Higdon, 3 B. & Ald. 213; 2 L. Raym. 865. (t) Pickup v. Wharton, 2 Dowl. 388; 2 C. & M. 401, S. C.: Booth v. Holt, 2 H. Bl. 277: Bennett v. Coker, 4 Burr. 1928. (u) Higgs v. Warry, 6 T. R. 654: Hawes v. Saunders, 3 Burr. 1584. (x) Melhuish v. Maunder, 2 New Rep. 72; 1 Chit. Rep. 629 n. (y) Nunez v. Modigliani, 1 H. Bl. 217; 3 Burr. 1585. (2) Harris v. Jones, 1 W. Bl. 451: 3 (a) Bennett v. Coker, 4 Burr. 1927.1 Brown v. Crowley, 3 Dowl. 386: Southgate v. Crowley, 1 Hodges, 1; 1 Bing. N. C. 318; 1 Scott, 374, S. C.: Wilkinson v. Edwards, 3 Dowl. 137; 1 Bing. N. C. 301, S. C.: Lakin v. Massie, 4 Dowl. 239; 1 Gale. 270, S. C.: Engler v. Tuisden, 2 Bing. N. C. 263; 4 Dowl. 330: Prole v. Wiggins, 3 Bing. N. C. 235. (c) Farley v. Briant, 3 Ad. & El. 839. (d) Id.: supra, n. (a). (e) See Southgate v. Crowley; Brown v. Croley; Godson v. Freeman, supra. (f) Ashton v. Poynter, 1 C., M. & R. 738; 3 Dowl. 465; 1 Gale, 57, S. C. The decision in Lysons v. Barrow, 4 Moo. & Sc. 463: 10 Bing. 563, S. C., cannot, it seems, be supported. See 3 Dowl, 471; 1 C., M. & R. 740, per Parke, B.: Spence v. Albert, 4 Nev. & M. 385; 2 A. & E. 785; 1 H. & W. 7, S. C.: Woolley v. Sioper, 3 Moo, & Sc. 248; 2 Dowl. 208, S. C. spective in its operation (g). The application by the executor to be relieved from costs should be made before the taxation; otherwise, if granted, it will only be on payment of the costs of the application (h). The decision of a single judge as to the costs may be reviewed by the court (i). CHAP. V. SECT. 2. they may be sued. In what Court they may be Sued.] EXECUTORS and administra- In what Court tors are not, unless expressly named, within the statutes by which courts of conscience have been established (k); and consequently, they may be sued in the superior court, however trifling the cause of action may be. Also, it may be necessary to remark, if the defendant be an attorney, or officer of the court, yet he is not entitled to his usual privileges when sued as an executor, &c.(1). Actions Limitation of Actions against.] An action cannot be main- Limitation of tained against an executor, until he has taken upon himself to against. act as such, or proved the will. Therefore, where a testator died abroad more than six years before the commencement of the suit, but his executors in this country had not proved the will, nor in any manner acted as executors, until within six years, the Court of Common Pleas held that the Statute of Limitations was no bar(m). But when the debtor died after the statute had begun to run, and (in consequence of litigation as to the right to probate) an executor of his will was not appointed until after the expiration of the six years, the Court of Exchequer held that the debt was barred, and that the creditor was not entitled to a reasonable time after grant of probate within which to bring his action (n). By the 3 & 4 W. 4, c. 42, s. 2, actions of tort may be brought against executors or administrators for any wrong done by the testator or intestate within six calendar months of his death to (g) Freeman v. Moyes, 3 Nev. & M. 883; 1 A. & E. 38, S. C., Littledale, J., diss.: Pickup v. Wharton, 2 C. & M. 406: Grant v. Kemp, Id. 636: and see Lakin v. Massie, 4 Dowl. 239; 1 Gale, 270, S. C.: Prole v. Wiggins, 3 Bing. N. C. 235. (h) Ashton v. Poynter, 1 Gale, 57; 1 C., M. & R. 738; 5 Tyr. 322; 3 Dowl. 465, S. C. (i) Lakin v. Massie, 4 Dowl. 239; 1 Gale, 270, 8. C.: overruling Maddor v. Phillips, 1 H. & W. 251; 5 Nev. & M. 370; 3 A. & E. 198, S. C. (k) Ailway v. Burrows, Doug. 263: Webb v. Brown, 5 T. R. 535. (1) Newton v. Rowland, 1 Salk. 2; 1 Ld. Raym. 533, S. C. (m) Douglas v. Forrest, 1 Moo. & P. 663; 4 Bing. 686, S. C.: and see Murray v. East India Company, 5 B. & Ald. 204: ante, 874. (n) Rhodes v. Smethurst, 4 M. & W. 63: and see in Equity, Freake v. Cranefeldt, 3 Myl. & Cr. 499. PART II. BOOK III. the property, real or personal, of another; provided the actions be brought within six calendar months after they have taken upon themselves the administration of his estate, and the damages recovered are to rank as simple contract debts. Where an action ex contractu will lie, it may still be brought. Therefore, where the testator had wrongfully taken coal from the plaintiff's land and sold it and received the proceeds, though no direct evidence was given of the sum received, but merely of the fact of the sale, it was held that the plaintiff might bring money had and received for so much as was raised before the six months, and trespass under the above act for so much as was raised within the six months, the acts being distinct, and the two actions therefore not incompatible, although the plaintiff might have recovered for all in the action for money had and received (o). Process and Process and Declaration.] The executor or administrator Declaration. need not be described as such in the process (p). Executors or administrators cannot be holden to bail, unless in cases where they have promised in writing to pay the debt of their testator or intestate, or (under a judge's order) when they have been guilty of a devastavit (q); and not even then, unless the debt be over 207., and they be about to quit England (r). The declaration is filed or delivered as in ordinary cases. Plea and sub ceedings. Plea and subsequent Proceedings.] If the defendant allow sequent Pro- judgment to go by default, or expressly confess the action, this is deemed a confession of assets, and he will be estopped from denying it afterwards in an action on the judgment suggesting a devastavit (s). He should therefore take care to plead regularly to the action, unless he wish to acknowledge assets. If the defendant dispute his being executor or administrator, he should plead it specially (t). The plea is delivered as in ordinary cases. The plea of plene administravit, or ne unques executor, need not, in the Courts of Queen's Bench or Exchequer, be signed by counsel (u). On account of costs, it is not advisable to plead any false plea (x). Proceedings upon plene administravit If the defendant plead plene administravit or plene administravit præter, alone, the plaintiff in his replication may either pleaded alone. deny it, or he may confess it, and pray judgment of assets in futuro, upon the former plea (y); or, upon the latter, take judgment presently of the assets acknowledged to be in the hands of the defendant, and of assets in futuro for the residue. In the latter case the plaintiff may sign judgment of assets quando acciderint, &c.(z), after executing a writ of inquiry fendant wished, under the plea of plene (y) See a form, Chit. Forms, 511. when necessary (a): and when assets afterwards come to the hands of the executor, he may proceed against him by scire facias, as directed ante, 827, 828. СНАР. У. SECT. 2. on other Pleas But if the defendant plead either of the pleas above men- Proceedings tioned, and also the general issue or other plea, and the plaintiff deny both in his replication, the issue is then made up, and the parties proceed in the ordinary way; or if the plaintiff add the similiter to the general issue, and confess the plea of plene administravit &c., and pray judgment of assets in futuro, &c., as above mentioned, then, after entering the replication in the issue, enter an award of the venire in this form: "But because it is uncertain whether the defendant will be convicted upon the said issue above joined between the parties aforesaid, therefore let judgment be thereupon stayed until the trial and determination of the said issue; and in order to try the said issue, the sheriff is commanded" &c., as in ordinary cases (b). In this latter case, if the plaintiff have a verdict, judgment is signed, and he proceeds as in ordinary cases against an executor who has pleaded a false plea; so that, if such plea be false within his own knowledge, (as a plea of ne unques executor, or the like), he would be personally liable, not only for the costs, but also, it seems, for the debt, and judgment and execution might be issued against him accordingly (c); or if not false within his own knowledge, (as a plea that the testator did not promise, or the like), he would be personally liable for the costs, and the judgment signed against him would be of assets quando &c., upon which the plaintiff might afterwards, when assets came to defendant's hands, have a scire facias, as is above mentioned, for the debt, and immediately have a fi. fa. or ca. sa. for the costs de bonis testatoris, et si non, de bonis propriis (d). as to prefer It is well settled, that if an action be commenced against an Confessing executor or administrator for any specific debt, it must be Judgment so preferred by him in payment to others of the same class: and a Creditor. in that case, the executor or administrator would not be warranted in making any voluntary payment of such other debts to defeat the party of his remedy (e). Yet, although one creditor commence an action, if another creditor, in equal degree, commence a subsequent action, and first recover judgment, he must be first satisfied. Hence an executor or administrator has it in his election to give a preference, by confessing judgment in the action of the one, and pleading such judgment to the action of the other (f). In case, therefore, a hostile creditor bring an action, and there be not sufficient assets to divide amongst the creditors, and the executor be desirous of making an equal division, or favouring any particular creditor or creditors of the same class, in preference to the hostile plaintiff, the course adopted is, to get one or more of the friendly creditors, whose debt, or joint debts, will fully cover the assets in hand, immediately to bring a friendly action or actions, and declare therein in the common form of debt, and |