that was so foreign from the subject-matter in issue, that it was unnecessary to warn the jury upon the subject. The next point is, whether the statute 13 Geo. 3, c. 78, s. 15, afforded the defendant any justification. The question arising upon this part of the case was properly submitted to the jury. It was left to them to say whether any part of the plaintiff's fence had been cut away. The fence is not, as has been contended, to be confined to the mere bushes, but embraces also the substantial part of the inclosure upon which the hedge was supported. Upon the whole it seems to me that the verdict ought not to be disturbed. Mr. Justice GASELEE.-I am of the same opinion. It has some where been laid down that the removal of any thing attached to the soil is injurious to the reversionary interest, inasmuch as it tends to destroy the evidence of the state of the property. Mr. Justice BOSANQUET.-Whether considerable or not, the removal of the soil was a permanent injury to the reversioners. The evidence shewed that part of the substance of the fence had been cut away. 1832. ALSTON v. SCALES. Rule refused. DAVIS v. BLACKWELL, Executor, &c. Tuesday, May 29th. Plene administravit is no bar THIS was an action of covenant to recover damages against the defendant for dilapidations suffered by the testator upon premises which had been demised to him by a lease that expired at Christmas, 1831. The defend-cutor upon a to an action against an exe covenant by the testator, where the executor has paid over the residue within six months after probate. 1832. DAVIS v. ant pleaded-first, plenè administravit-secondly, plenè administravit before notice of the covenant-thirdly, BLACKWELL, plenè administravit before notice of the breaches. The plaintiff took issue upon these pleas. At the trial, before Lord Chief Justice Tindal, at the Sittings in London, after last Hilary Term, the following facts were admitted or proved:-That the testator died on the 3rd March, 1829; that the will was proved on the 14th May, 1830; that the sum of 26341. 7s. 6d. had been received by the executors; and that the balance was paid over to the residuary legatees on the 30th November, 1830. There was no evidence that, prior to that period, the defendant had had any notice of the breaches of covenant complained of, save a notice to the tenant in possession, in June, 1830. A verdict having been found for the plaintiff-damages 871. 13s. 6d.― Mr. Serjeant Spankie, in the last term, obtained a rule nisi to set it aside and enter a verdict for the defendant, on the ground that he was discharged in law by payment over to the legatees before notice. He cited The Chelsea Water-Works Company v. Cowper (a), where it was held, that, on plenè administravit, the defendant might shew that he had paid over the residue to the residuary legatee, after discharging debts and legacies, the year after the testator's death; and also the case of Brooking v. Jennings (b), where it was held, that, on plenè administravit, the defendant might give in evidence that he was administrator durante minore ætate, and had paid certain debts, and had delivered over the residue to the executor on his coming of age (c). (a) 1 Esp. Rep. 275. (c) He also moved inarrest of covenant was declared on as unqualified, and the breach assigned was general, not negativing the exception. But the Court held it cured by verdict. Mr. Serjeant Wilde now shewed cause.-The only question is, whether the executor was justified in paying away the assets of the testator in legacies within so short. a period as six months after the testator's death. In Brooking v. Jennings, there was no default in the admistrator: he only paid over the residue to the executor on his coming of age. The principle of the case of The Chelsea Water-Works Company v. Cowper is equally inapplicable: there, the claim of the creditor was not made till thirty years after the distribution of the assets by the executor. Here, the period of the lease regulates the liability. In Wilkins v. Pry (a), the Master of the Rolls (Sir William Grant) says-" That an executor to the extent of assets is liable to be sued upon his testator's covenants, without regard to his having or not having the possession of the lease. Even if the tenant had, before his death, assigned the lease, the executor would not be the less liable to be sued upon the covenants. He cannot, by assigning it away himself, get rid of his liability to be sued. There is, therefore, a reason why he should require a covenant of indemnity, just as much as there was why the testator himself should have required such a covenant; because, as the testator was bound by the personal covenant, the executor is bound to the extent of assets by the same covenant." The statute of distributions, 22 & 23 Car. 2, c. 10, which provides that the surplusage of intestates' estates shall be distributed after the expiration of one full year from the death of the intestate, furnishes an analogy in the case of a distribution under a will. The distribution in such case should not be made within twelve months from the time of proving the will. The pleas ought to have averred something to raise the question whether or not a reasonable time had been suffered to elapse before the residue was parted with by the defendant. (a) Merivale, 265. 1832. DAVIS บ. BLACKWELL. 1832. DAVIS BLACKWELL. IN THE COMMON PLEAS, Mr. Serjeant Spankie, in support of his rule.-The question raised by the pleadings is, whether or not the executor had assets of his testator at the time of notice of the breaches of covenant complained of. The negative was clearly established. To entitle the plaintiff to object to the order in which the distribution was made, the replication should have raised an issue on a devastavit. The principle laid down by Lord Kenyon in the case of The Chelsea Water-Works Company v. Cowper is clearly applicable to the present case. "Where," said his lordship, "an executor or administrator has satisfied the debts and legacies affecting the testator's or intestate's estate, and paid over the remainder to the residuary legatee, and has had no notice of any other subsisting demand, provided he had not done it too precipitately, it was a good answer to an action such as the present." And in Brooking v. Jennings, Lord Chief Justice Vaughan says: "It is said that here are fifteen hundred pounds liable to pay this debt: for, to pay debts upon simple contracts or legacies before it, is a devastavit. That is a mistake upon which some books run; but it is certainly not law. Debts upon simple contracts may be paid before bonds, unless the executors have timely notice given them of those bonds; and that notice must be by action." The only question in such a case is, whether the executor has taken due and reasonable means to ascertain the demands upon the testator's estate before paying over the assets; or whether he has acted with undue precipitation. The case of Harman v. Harman (a) establishes the general principle that simple contract debts of the testator may be paid, where the executor has no notice of debts upon specialty. Lord Chief Justice TINDAL.-The only question in this case is, whether the defendant has shewn by evidence that (a) 3 Mod. 115. he has duly administered the assets of his testator; for it lies on him to establish the affirmative. It appears that the will was proved on the 14th May, 1830, and that the executor paid over all that remained after satisfying certain debts, to the residuary legatees, in November following; thus allowing only an interval of six months to elapse before parting with the assets. It appears to me that that was not allowing a reasonable time for the purpose of ascertaining, and giving time to creditors of the testator to come in and demand their debts, so as to shew that the defendant has duly administered the assets. I am not prepared to say that payment of legacies would in any case afford an answer in a Court of law to an action brought against the executor for a debt due from the testator; for, I find the rule universally laid down, that, after payment of the debts of the testator or intestate, it is the duty of the executor or administrator to pay the legacies: and if the executor or administrator pays legacies before debts, he pays them at his own hazard, and not in a due course of distribution. I do not, however, say that lapse of time might not vary the situation of the parties—as in the case of The Chelsea Water-Works Company v. Cowper. The statute 22 & 23 Car. 2, c. 10, s. 8, certainly leads to the inference that an executor could not protect himself from the claim of a creditor of his testator, by shewing the payment of legacies: that section enacts, "That no such distribution of the goods of any person dying intestate be made till one year be fully expired after the intestate's death; and that each and every one to whom any distribution and share shall be allotted, shall give bond with sufficient sureties in the said Courts [the Prerogative Courts of Canterbury and York], that, if any debt or debts truly owing by the intestate shall be afterwards sued for and recovered, or otherwise duly made to appear, then and in every such case he or she shall respectively refund and pay back to the administrator his or her rateable part of that debt or debts, and of 1832. DAVIS V. BLACKWELL. |