Plaintiff must

show a proper Title.

Executor may

file a bill before

probate ;

but must prove before hearing.

The same rule applies to administrators;

but probate or administration must be stated in the bill.

Defendants

may, however, plead the fact that no probate, &c., has been granted.

sentatives of the original testator, admitting however that there was no express authority upon the question. The Master of the Rolls, nevertheless, was inclined to think that the chain of representation was complete; and, on a subsequent day, his Honor decreed accordingly (g).

If an executor, before probate, file a bill, alleging that he has proved the will in a proper Ecclesiastical Court, such allegation will obviate a demurrer (h); he must, however, prove the will before the hearing of the cause, and then the probate will be sufficient to support the bill, although it bear date subsequently to the filing of it (i). In this respect, Courts of Equity differ from Courts of Law; for at law an executor cannot maintain actions before probate, unless such as are founded on actual possession; because, in actions where he sues in his representative character, he is bound, when he declares, to make profert of the letters testamentary; otherwise the defendant may demur (k). The same distinction also prevails between the practice of Courts of Law and Courts of Equity with respect to administrators; for in equity a plaintiff may file a bill as administrator before he has taken out letters of administration, and it will be sufficient to have them at the hearing (1), which is not the case at law.

It is to be observed that, although an executor or administrator may, before probate or administration granted, file a bill relating to the property of the deceased, and such bill will not on that account be the subject of demurrer, provided the granting of probate or of letters of administration, by the proper Ecclesiastical Court, be alleged in the bill, yet a defendant may take advantage of the fact not being as stated in the bill, by plea; thus, in Simons v. Milman (m), where letters of administration had been granted to the defendant under the idea that the deceased had died intestate, whereas, in fact, he had made a will and appointed the plaintiff his executor, who before probate, filed a bill, for the purpose of

recovering part of the assets of the testator from the defendant, alleging that probate of the will had been granted to him, to which bill the defendant put in a plea stating that such was not fact; the Vice-Chancellor (Sir A. Hart) allowed the plea. At law, however, it seems, that a defendant cannot plead, to an action brought by an executor, that the plaintiff has not proved the will, though he may demur if the plaintiff does not, in his declaration, show the probate (n). The reason of this is that the right of the executor is derived from the will and not from the probate, which only completes the incipient title. With respect to an administrator, however, it is different; for the administrator receives his right entirely from the administration (o).

Plaintiff must show a proper

Title.

bate, must, state

it to have been taken out.

Secus in a Bill against Execu

tor.

But although an executor filing a bill before probate, Executor filing must, as we have seen, allege in it that he has proved bill before prothe will in the proper Ecclesiastical Court, it is not necessary that in a bill against an executor such a statement should be made; for if executors elect to act they are liable to be sued before probate, and cannot afterwards renounce (p). It also seems that if a party entitled by law to take out administration to a deceased person, does not do so, but acts as if he were administrator, and receives and disposes of the property, he will be liable to account as administrator, and it will not be necessary to have any other party before the Court. Thus, in Cleland v. Cleland (q), an objection for want of parties, on the ground that an administrator was not before the Court, was overruled, because the widow of the deceased, who was the person by law entitled to the administration, and who had possessed herself of her husband's personal estate and disposed of it, was a party, though she denied by her answer that she had taken out administration, which, by the bill, she was alleged to have done.

Where it appears that, in order to complete the plaintiff's title to the subject of the suit or to the relief he seeks, some preliminary act is necessary to be done, the performance of such preliminary act ought to be averred upon the bill, and

(n) Comber's Case, 1 P. Wms. (0) Ibid.

768.

(p) Blewitt v. Blewitt, 1 Younge,

543.

(4) Prec. Ch. 64.

All preliminary

acts necessary to complete plaintiff's title

must be averred.

Plaintiff must show a proper Title.

Secus in suits by assignees of bankrupts, &c.

Of showing a derivative title.

Plaintiff must show how he is heir.

As to setting out the plaintiff's pedigree.

the mere allegation that the title is complete, without such averment will not be sufficient; thus where a plaintiff claimed as a shareholder by purchase, of certain shares in a jointstock company or association, alleging in his bill that he had purchased such shares for a valuable consideration, and had ever since held the same; but it appeared in another part of the bill, that, by the rules of the company or association, no transfer of shares could be valid in law or equity unless the purchaser was approved by a board of directors, and signed an instrument binding him to observe the regulations, the Lord Chancellor (Lord Brougham) allowed a demurrer, on the ground that the performance of the rule above pointed out was a condition precedent, and ought to have been averred upon the bill, and that the allegation of the plaintiff having purchased the shares and being a shareholder, although admitted by the demurrer, was not sufficient to cure the defect (r).

The question, whether the assignees of a bankrupt or of an insolvent debtor can file a bill, without previously procuring the consent of the creditors, and averring that such consent had been obtained, has already been discussed at much length. All that need here be said upon that subject is, that it appears now to be settled that such an averment is not necessary (s).

In pleadings at Common Law, it is held that, in stating a derivative title, a party claiming by inheritance, must show how he is heir, viz. as son or otherwise; and, if he claims by mediate and not immediate descent, he must show the pedigree (t); for example, if he claims as nephew, he must show how he is nephew. It appears to be right, upon every principle, that the same rule should be observed in bills in equity; and, in Lord Digby v. Meech (u), the Court of Exchequer appears to have acted upon this impression. In that case, the object of the bill was to establish the plaintiff's right to a manor, and to certain fines and fees formerly granted, to the lord of it, by the King. The title, as set forth by the bill was,

(r) Walburn v. Ingilby, 1 M. & K.61.

(s) Vide ante, p. 80, and Casborne v. Parsham, 6 Sim. 131.

(t) Steph. on Pleadings, 340.

(u) Bunb. 195.

Derivative Title.

that King James I. granted the premises to Sir John Digby, Of showing a afterwards Earl of Bristol; from him they descended to George; from him to John, Earl of Bristol; and, on his death, vested in the now plaintiff; and it was objected at the hearing that there was not a sufficient title set forth, it not appearing how the premises vested in the plaintiff, whether by descent, settlement, or otherwise; and the whole Court agreed that the bill ought, for this reason, to be dismissed, the bill being to establish a right, as well as for an account: upon this ground the cause stood over, but with liberty for the plaintiff to amend his bill. The decision of Lord Thurlow in Delorne v. Hollingsworth (x) appears, however, to throw some doubt as to the necessity of setting out in a bill the manner in which the plaintiff makes out his descent. In that case the plaintiff who claimed to be entitled to certain premises as heir at law of an ancestor, and prayed a discovery of the defendant's title, and an account, &c., did not by the bill set out her pedigree fully, but stated that one person through whom she made title had three sons, and that she claimed, under the second son, without alleging that the first son died without issue; to this bill the defendant demurred, “because the plaintiff had not sufficiently stated the pedigree by which she made title," and the demurrer was overruled. In pronouncing his judgment, Lord Thurlow said, "If this demurrer were to be allowed, it would only drive the plaintiff to supply the pedigree in another bill, and thus I do not see the propriety of trying the main question, and cutting short the cause in this stage of it, unless a special case had been made out, by which it appeared that some great length of proceedings, or some great expense, would be saved by it. The whole question is, whether the allegation in the bill, of the plaintiff being heir, is not sufficient to entitle her to go on in the suit; and, in general, I see no reason why it should not (y)." It is, however, to be observed, that the plaintiff had in fact partly stated her pedigree; and that the defect arose from the circumstance of her omitting to state the death of a party without issue, whose death, under such circumstances, was necessary to entitle the

Of showing a Derivative Title.

Where plaintiff's claim depends upon privity or contract, and not title;

in suits between mortgagor and mortgagee.

between lessor and lessee.

In suits between principal and agent.

person, under whom the plaintiff claimed; but that the defect was supplied by the averment that she claimed under that person, which she could not have done, if the other had not died without issue; so that, in fact, there was an averment, sufficient in substance, on the face of the bill, to obviate a demurrer on the ground taken, namely, that the pedigree was not sufficiently set out.

Where there is a privity existing between the plaintiff and defendant, independently of the plaintiff's title, which gives the plaintiff a right to maintain his suit, then it is not necessary to state the plaintiff's title fully in the bill; thus where a plaintiff's claim against the defendant arises under a deed or other instrument, executed by the defendant himself, or by those under whom he claims, which recites, or is necessarily founded upon, the existence, in the plaintiff, of the right which he asserts, it is sufficient to allege the execution of the deed by the parties. Thus in the case of a bill, by a mortgagor in fee, against a mortgagee, to redeem the mortgage, it is sufficient merely to state the mortgage-deed, without alleging that the mortgagor was seized in fee, &c., because the defendant having executed the deed which proceeds upon that supposition, amounts in effect to an acknowledgment of that fact, which he cannot afterwards be admitted to dispute; and so if the mortgagor has only a derivative title, it is not necessary to show the commencement of such derivative title, or its continuance, because the right of the plaintiff to redeem, as against the defendant, does not depend upon the title under which he claims, but upon the proviso for redemption in the mortgage-deed. Upon the same principle, where a defendant holds under a lease from the plaintiff, the plaintiff need not set out his title to the reversion, the fact of the defendant having accepted a lease from the plaintiff being sufficient to preclude his disputing the title under which he holds (z). In like manner, where a man employs another as his bailiff or agent, to receive his rents or tithes, the right to call upon the bailiff or agent for an account does not depend upon the title

(z) If the plaintiff claims as heir, or under a derivative title from the mortgagor or lessor, he must, as in other cases, show how he makes out his