Several Judgments pleaded, where one is ill. HANCOCKE replications, there was a discontinuance, for the defendant had demurred but to one replication; for he says, quod placitum prædictum superius minus sufficiens existit. Sed non allocatur ; PROWD. found to be false. It is true, that if one or twenty judgments be obtained against the executor himself, whether by default, or by verdict, finding them on plene administravit, it is an admission of assets to satisfy them all. 1 Salk. 310. Rock v. Leighton. Therefore, if the executor pleads these judgments, and one of them is found to be false, it seems the plaintiff is entitled to judgment, though the plea alleges that the defendant has but a small sum not sufficient to satisfy them; for the allegation is not material. 1 Salk. 312. As the judgments pleaded are an admission of assets to satisfy them all, if any one of them be falsified, the executor does of course admit by his plea that he has more assets than will (g) [2 Cr. M. & R. 558. Cousins v. Paddon, per Parke B. Accord.] [The statutes 27 Eliz. c. 5, and 4 Anne, c. 16, did not apply to pleas in abatement, and therefore, generally speaking, a plaintiff need never have demurred specially to a plea in abatement. (But the duplicity in such a plea could only be taken advantage of on special demurrer at common law, independently of those statutes. 1 Exch. 734. Ryalls v. Bramall.) How satisfy the other judgments, by as much as the judgment so falsified amounts to. Perhaps, therefore, the rule may be understood thus, that if the executor plead judgments obtained against his testator, and that he has not sufficient to satisfy them, or any of them, if any one or more of the judgments be avoided, still there ought not to be a general judgment against the executor, or at least not until so many are avoided as to leave assets in the executor's hands. But if he pleads judgments obtained against himself, and any or more of them be avoided, in that case there ought to be a general judgment for the plaintiff (y). (7) According to the general rules of pleading, the replication ever, it is apprehended that since the C. L. P. Act, 1852, s. 50, a plea in abatement would not be held bad on general demurrer for defect of form, inasmuch as it enacted that where issue is joined on demurrer to the pleading, "the court shall pro"ceed and give judgment accord ing as the very right of the cause "and matter in law shall appear "unto them, without regarding "any imperfection, omission, de"fault in, or lack of form."] Replication to plea of Judgments recovered. for the word placitum is nomen collectivum, and refers to all the three replications (8). And the court gave judgment for the plaintiff (9) that he should " recover against the defendant his debt, and also 81. "for his damages, which he has sustained as well on the occa"sion of the detention of that debt, as for his costs and charges by him about his suit in that behalf expended, adjudged to "the said plaintiff by the court, &c., with his assent, to be "levied of the goods and chattels which were of the said "intestate at the time of his death in the hands of him the "said defendant to be administered, if he have so much in his "hands; and if he have not so much in his hands, then the damages aforesaid to be levied of the proper goods and chattels "of him the said defendant" (10). 66 would be considered double, if it Tresham's case. 2 Trethewy v. Ack HANCOCKE 2. PROWD. (h) See 3 Exch, 320. London and Brighton Railway v. Good win. HANCOCKE V. PROWD. Judgment against Executor, form of. NOTE.-The Reporter expressed his own opinion that the judgment was wrong-for that it seemed clear that it was but only be supported against him in that character, and he pleads any plea which admits that he has acted as such, except a release to himself hereafter noticed, the judgment against him must be, as it is in this entry, that the plaintiff do recover the debt and costs, to be levied out of the assets of the testator, if the defendant have so much, but if not, then the costs out of the defendant's own goods; otherwise the judgment will be erroneous (i). As where the defendant pleads non est factum testatoris, or a release to the testator, or payment by him, or non assumpsit, though these pleas admit assets: see Went. Executors, 185, 186. 1 Salk. 310. Rock v. Leighton. 1 Atk. 292, 294. Ramsden v. Jackson. 3 T. R. 685. Erving v. Peters, as (i) 3 B. & Sm. 90. Gorton v. Gregory. Accord. (k) [However, where a plaintiff who was entitled to judgment against a defendant executor de bonis testatoris et si non, &c., took judgment and issued execution for debt and costs de bonis propriis, the court set aside the judgment and execution on motion. 1 Cr. & M. 532. Ward v. Ward v. Thomas.] And the court will not, after a lapse of six years, to the former, and Robinson's Ent. 64, 65, as to the non assumpsit; so where he pleads plene administravit, and it is found against him. 1 Rol. Abr. 931 (D.), pl. 3. Went. Executors, 186. Towns. 2nd Judgments, 69, pl. 31. But if the judgment be entered de bonis propriis, instead of bonis testatoris si, &c., it is considered as a mere clerical mistake, which the court below will amend on motion, even after the record has been removed by error and argument in the court of error. Burr. 2730. Short v. Coffin, executor (k). 5 Anciently, if it was found by verdict that the executor had assets sufficient to satisfy but part of the debt, the usual practice of the K. B. was to enter up judgment for the whole debt, but allow a judgment for the debt de bonis testatoris, and for the costs de bonis testutoris et si non de bonis propriis, to be altered to a judgment, generally de bonis testatoris et si non debonis propriis, even if the latter be clearly the judgment to which the plaintiff was entitled, the distinction being between an alteration to discharge, and one to fix, the personal liability of the executor. 5 Taunt. 556. Burroughs v. Stevens. Judgment against Executor. PROWD. one replication, and double, and badly concluded-and that if HANCOCKE they were three replications, then it was a clear discontinuance ((11), post, 611). to take out execution only for the sum found by the verdict; and if the executor was afterwards possessed of more assets, to sue out a scire facias on the judgment. Bro. Executors, 34, per Finchden. 1 Rol. Abr. 929 (B.), pl. 1. Cro. Eliz. 592. Waterhouse v. Woodstreet. Cro. Car. 167. Snape v. Norgate. Ibid. 373. Dorchester v. Webb. But in Cro. Eliz. 319. Hargthorpe v. Milforth, the prothonotaries of the Common Pleas certified that their course was not to enter judgment of the whole debt, but only of so much as was found to be in the executor's hands. And in Towns. 2nd Judgments, 68, pl. 29; 69, pl. 32; 70, pl. 35, there are similar entries; so in Went. Ex. 191. And the same point was determined by Lord Mansfield in Harrison v. Beccles, cited 3 T. R. 688. Erving v. Peters, where the plaintiff, having proved a debt of 80l., took a verdict on the non assumpsit for the sum, and having proved 251. assets unadministered, he took a verdict on the plene administravit for that sum and judg () [1 B. & Ad. 265. Hancock v. Podmore, per Bayley, J. Accord.] (m) [Mood. & Malk. 330. Par ment quando, &c., for the residue (). See the form of a judgment quando, &c. 2 Saund. 216, 217. Noel v. Nelson. It may perhaps appear questionable, whether there is any real difference between the two modes of practice. For, in the former case, the executor was only bound to pay the assets found by the jury. But probably the principle of the case of Harrison v. Beccles will be held to apply to moderate the rule, that judgment shall be given against all the executors who join in the plea of plene administravit, although the jury find that one of them only has assets; 1 Rol. Abr. 929 (B.), pl. 4: so that perhaps judgment would now be given against him only, and the rest should go quit (m). For the judgment is always so entered when the executors plead this plea severally by several attorneys. Ibid. pl. 5. Perhaps the form of entering up judgment on the two issues of non assumpsit by the testator, and of plene administravit by the defendant, to which the plaintiff replied that the de sons v. Hancock. 2 Cr. M. & R. 558. Cousins v. Paddon, per Parke, B. Accord.] |