that sued for. In this case of a bond, if it appear that the defendant had assets in his hands. to have paid it, and that he neglected to do so, he will not be allowed the interest incurred by his own laches.

Vernon,

The defendant may also prove on this plea, 1 Mod. that, being but an administrator during a limited 174 time, as durante minori ætate of an infant executor (to show which the letters of administion should be produced) he had at the expiration of the time, aud before the commencement of the plaintiff's action, delivered over the assets remaining in his hands to the executor; and an executor de son tort may in like man- Curtis v. ner prove that he had delivered them to the 3 T. Rep. rightful administrator before the action was 587. commenced. Lastly, if he himself were lawful executor or administrator, he may prove a debt due to himself from the deceased, and if it be of a degree equal to that of the plaintiff's, retain to the amount; but an executor de son tort is Vide Bul. not permitted so to retain. It has been said that to prevent a retainer the plaintiff ought to shew him to be exccutor de son tort by proof of the will, and that other persons are executors: but it should rather seem that the onus in this case ought to lie on the defendant to shew himself the legal representative of the deceased, than on the plaintiff to shew the contrary; for the plaintiff knows nothing more of his title than finding him in possession of the effects. Besides, in most cases where a person is sued as

executor

N. P. 143

Part II. executor de son tort no will whatever has been

On the

Plea of Bonds outstanding.

made.

On the plea of specialty debts outstanding, and plene administravit præter, the plaintiff may either traverse the bonds, or reply that there are sufficient assets to satisfy them, and also to pay his debt; or that they are conditioned for the payment of a less sum, which the creditor is willing to take, but that the defendant keeps them on foot by fraud to cover the assets, and that he had sufficient to satisfy the plaintiff's debt after payment of what was due.

If the bonds are denied by the replication, Salk. 312. the defendant must prove them by the subscribing witness, and if the defendant has pleaded several, and fail in the proof of any one, the whole plea is bad.

Bank of

England

2 Stra.

1028.

On the second kind of replication, viz. the sufficiency of the assets, the evidence will be the same as on the general plea of plene administravit: But then, if the day of payment were v. Morris, passed, and the bond forfeited at the testator's death, the plaintiff must prove assets over and above sufficient to satisfy the full amount of the penalty, even though the conditions are set out in the plea. In this case therefore it is always adviseable for the plaintiff to reply per fraudem, and very little matter is sufficient to prove the first part of this replication. The circumstance of the creditor being willing to take a less sum, and the defendant having asSaik. 311. sets to pay it, is sufficient; and then, whether

Parker v.

Atfield.

there

f. 2.

Bonds out

there were more assets than were wanting to sa- Ch.XIII. tisfy the debts really due, becomes the true question in the cause; as to which it is need- standing. less to repeat what has been before said as to the other replication.

v.

Ack

land,

When the defendant pleads judgement recovered against himself, the plaintiff may make similar replications. If the existence of the judgement be denied, it will be by a replication of nul tiel record, and of course the trial will be by the Court and not by the Jury. But if Trethewy the plaintiff admit the fact of the judgement, and state that it was recovered by fraud, and 2 Saund. that no debt whatever was due, it will then be incumbent on the defendant to prove to a jury Vide 1Stra the consideration of the judgement. When actual fraud is charged by the replication, and not merely the circumstance of the penalty being stated as the debt, the plaintiff does not reply to that part of the plea which says that the defendant has no assets ultra.

There is another action against an executor or administrator which requires a separate consideration; viz. that suggesting a devastacit. This action can only be maintained after a judgement recovered against the defendant de bonis testatoris; and as it charges him with wasting the goods, or applying them to his own use, it is brought in the debet and detinet, and the judgement is de bonis propriis.

The plaintiff having before obtained a judgement for his debt de bonis testatoris, the defen

48.

410.

Action

suggesting a Devasta

vit.

dant

552

Action suggesting

Skelton v.

Hawling, 1 Wils. 258.

ACTIONS AGAINST EXECUTOR, &c.

Part II. dant is not permitted in this action to say that he has duly administered such goods; and a Devasta therefore the only point in dispute on the plea. vit. of nil debet is the judgment and the devastavit. The only evidence, therefore, which is necessary on the part of the plaintiff, is an examined copy of the judgement and of the writ of fieri facias de bonis testatoris, with the Sheriff's return of a devastavit or nulla bona thereon; for even should the defendant have goods of the testator, and not point them out to the Sheriff when he goes to levy on the writ, the very concealment is sufficient evidence that he has embezzled or wasted them.

Ewing v.
Peters,

3T. Rep.

685

But though this evidence is sufficient on the part of the plaintiff, it is not conclusive against the defendant; for, notwithstanding the Sheriff's return of a devastavit, he may still shew that in point of fact he has not wasted the property of the testator, but that it still remains liable to the execution of the plaintiff; as if when the Sheriff came to levy under the writ, he shewed goods of the testator which remained in his hands undisposed of, but the Sheriff refused to levy, or the like.

CHAP. XIV.

OF THE EVIDENCE IN ACTIONS BY AND AGAINST
HEIRS AND DEVISEES.

H

EIRS or Devisees may be plaintiff's upon the covenant made by their ancestor or devisor; or may be sued upon his bond, &c.; and they have frequently occasion to be parties in actions of trespass, replevin, and ejectment, when their right to the land itself comes in question.

In actions of covenant, debt, trespass, and replevin, the pleadings necessarily point out the fact to be proved, but, in the action of ejectment, every thing necessary to make out the title of the parties must be given in evidence.

SECTION I.

Of proof of Title by an Heir.

Heir.

THIS Action, therefore, requiring the most Proof by evidence, we will suppose the case of a person bringing an ejectment as heir at law to his first cousin er parte paterna, who died scised of

an