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1835.

REEVES

v. WARD.

to wit of the value of the damages sustained by the plaintiffs.

The cause was tried before Vaughan, J., at the Sittings in London in Easter Term last. The evidence on the part of the plaintiffs fixed the defendant with the receipt of assets of the testator to the extent of 311. 3s. 6d., the net proceeds of the sale of the testator's furniture and effects. To countervail this, the defendant offered to prove payment of debts of the testator to a larger amount. For the plaintiffs, it was submitted that such evidence was not admissible as the plea stood. The learned judge admitted the evidence, reserving the point. The defendant then proved the following amongst other payments:—71. for wages due to the son of the deceased; 81. to one Taylor, for interest due upon a mortgage; 141. to one Archard for money lent; and various other small sums for rent, rates, and taxes. She also claimed to retain Sl. for the funeral expenses of the deceased, and 101. for probate duty, which had not yet been paid, the probate not having been obtained until after the commencement of the action. To prove the payment of the 14l. to Archard, a receipt signed by him was produced: the receipt bore date the 9th of December, 1835; but a boy, a son of the deceased, swore that he was present when the money was lent by Archard to his father, and also when it was repaid by his mother after his father's death, and that he saw the receipt given.

An application was made to amend the plea by adding that the defendant had fully administered; but the learned judge, doubting his power to allow the amendment, referred it to the court.

A verdict was found for the defendant.

Alcherley, Serjeant, in Easter Term, obtained a rule calling upon the defendant to shew cause why the verdict should not be entered for the plaintiffs for 311. 3s. 6d., or why the plaintiffs should not be at liberty to sign judg

1835.

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v. WARD.

ment non obstante veredicto, or why there should not be a new trial.-—There are but three modes by which a party charged as executor can discharge himself, viz., by denying the character of executor, by denying the receipt of assets, or by pleading plene administravit or plene administravit præter. In the present case, the defendant has pursued neither of these courses : and the principal question is, whether the defendant can, under the form of plea she has adopted, prove payments before action brought in answer to the admitted fact of the receipt of assets by her.The plaintiffs are at all events entitled to judgment non obstante veredicto. The objection is not a mere technical one: it goes to the substance; for, if such evidence be admissible as the record now stands, a plaintiff can never be prepared to meet the defence set up. The evidence, too, as to these payments was very equivocal; the parties to whom they were made were most of them relatives of the deceased, and the circumstance of the receipt given by Archard bearing date in December, 1835, which has not yet arrived, shews that it was made up for the occasion. And with respect to the funeral expenses and charge for The probate, the former was not allowable, and the latter is yet unpaid.

Bere shewed cause. With the exception of the introductory matter, the plea is the same as is to be found in all the books. Under the issue tendered by it, the defendant could only succeed by shewing that she had fully administered. The omission of the allegation that the executor or administrator has fully administered, is perfectly immaterial; for, issue is never taken upon that fact, but always upon the receipt of assets. Indeed, the authorities shew that it is more correct to omit the allegation of plene administravit. In Noel v. Nelson, 2 Wms. Saund. 220 a, n. (3), Mr. Serjeant Williams says: “The words that they have fully administered the goods, &c.,' seem to be superfluous. The more formal and correct way of pleading ap

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WARD.

pears to be that they have no goods or chattels,' &c., omitting the preceding words, that they had fully administered.'” And this is not contradicted by the later edi. tors of that work, who observe: “ It seems rather too broadly asserted that the more correct way of pleading is to omit the words that they have fully administered.' It is true that it would in general be sufficient to plead ' that they have no goods, &c.:' but, in the case of an executor of an executor, it is necessary for the plea to state that the first executor fully administered ;' at least it is necessary to plead by some form of words that he did so-Wells v. Fydell, 10 East, 315; and no other words seem so apt; in such case they are clearly operative words, and in the ordinary case they seem at any rate not to be incorrect; besides, the old precedents will all be found to contain them.” And in Williams's Executors, Vol. 2, pp. 1211, 1212, it is said: “If an executor or administrator pleads plene administravit, and the plaintiff replies that the defendant has assets, whereupon issue is joined, the burthen of proof lies upon the plaintiff, who must prove that assets existed or ought to have existed in the hands of the defendant at the time of the writ sued out. And if upon the issue of plene administravit it shall appear that the executor or administrator has been guilty of a devastavit, which has caused a failure of assets, the jury must find that the defendant has assets to that amount, and not find a devastavit.” In Newton v. Richards, 4 Mod. 297, the plea was in the same form as the present: it is in fact substituted for the old plea of riens entre mains.-The plaintiffs are clearly not entitled to judgment non obstante veredicto. In Tidd's Practice, 9th edit. 922, it is said: “ The distinction between a repleader and a judgment non obstante veredicto seems to be this: that, where the plea is good in form, though not in fact, or, in other words, if it contain a defective title, or ground of defence, by which it is apparent to the court, upon the defendant's

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own shewing, that, in any way of putting it, he can have no merits, and the issue joined thereon be found for him, there, as the awarding of a repleader could not mend the case, the court, for the sake of the plaintiff, will at once give judgment non obstante veredicto: but, where the defect is not so much in the title as in the manner of stating it, and the issue joined thereon is immaterial, so that the court know not for whom to give judgment, whether for the plaintiff or de endant, then, for their own sake, they will award a repleader. A judgment therefore non obstante veredicto is always upon the merits, and never granted but in a very clear case." Neither are the plaintiffs entitled to a new trial. The issue being the same as the plea had been in the form suggested, there is no pretence for saying that the evidence given of the payments was a surprise upon them. Lister v. Mundell, 1 B. & P. 429, shews bow strict the courts are in such cases.

[The affidavit of Archard was produced, in which it was sworn that the deceased was indebted to him, Archard, in the sum of 111. for money lent, and that, on the 9th December last, the executrix paid him that sum.]

Atcherley, Serjeant, shewed cause.—The plea is not warranted by any of the precedents. In Newton v. Richards, the whole plea is not set out, and the point that now arises was not argued. At the present day, when the judges are anxiously framing rules to compel parties so to shape their pleadings that their opponents may know what is the precise nature of the defence intended to be set up, and so come prepared to meet it, it would be not a little singular now for the first time to permit such a plea as this, calculated as it is to lead the plaintiffs astray, to be put upon the record. Besides, the plea does not state that the defendant never had assets, but merely that she had them not at the time of the commencement of the action, nor at any time since. Such a plea was held in

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sufficient in the Year Book, 7 H. 4. 39: though the doctrine there laid down received some qualification in Gewen v. Roll, Cro. Jac. 132. If the plea be good, it must be so on the ground of its meaning that the party never had any assets. It is true that the replication to a plea of plene administravit always takes issue on the possession of assets: but the allegation that the defendant has fully administered shews what is meant; it makes the defence intelligible, and prevents the plaintiff from being taken by surprise. Under this form of plea, evidence of payments was clearly inadmissible. And many of the alleged payments were not allowable at all: the receipt for the 141. said to have been paid to Archard ought not to have been admitted to confirm the improbable statement of the boy; the 101. claimed for the probate, which had not been taken out at the time the action was brought, ought not to have been given credit for; [Tindal, C. J.—That the executrix was bound to pay); the 81. for the funeral of an insolvent man was unreasonable. [Tindal, C. J.–Of that the jury were the judges.] The rule upon this subject is laid down in Buller's Nisi Prius, 143, where the limit is said to be 51.; and also in Selwyn's Nisi Prius, 8th edit. p. 780. n. (18); and was considered in Hancock v. Podmore, 1 B. & Ad. 260.

TINDAL, C. J.-This rule comes before us upon three grounds—first, the plaintiffs seek to enter up judgment non obstante veredicto-secondly, to enter a verdict for the amount of assets admitted to have come to the defendant's hands, on the ground that evidence of payments was improperly admitted in discharge of those assets-thirdly, for a new trial, partly on the ground of the verdict being against evidence, and partly on affidavits, suggesting surprise. Upon neither of these grounds do I see any reason for disturbing the verdict. 1. The ground upon which First point. the first point is put in argument is this: The action is

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