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costs of the ejectment;1 and, also, under proper averments, the amount of any injury done to the premises, in consequence of the misconduct of the defendant or his servants, and any extra damages which the circumstances of the case may demand.?

$ 337. Improvements. The defendant, in this action for mesne profits, if he has in good faith made lasting improvements on the land, may be allowed the value of them, against the rents and profits claimed by the plaintiff.3 (a) But he cannot set up any matter in defence, which would have been a bar to the action of ejectment. Nor is bankruptcy a good plea in bar of this action ;5 unless the case is such that the damages were capable of precise computation, without the intervention of a jury, and might have been proved under the commission.

1 Doe v. Davis, 1 Esp. 358 ; Baron v. Abeel, 3 Johns. 481 ; Symonds v. Page, 1 C. & J. 29 ; Doe v. Hare, 4 Tyrwh. 29. For the defendant was but nominal, in the ejectment. Anon., Lofft, 451.

2 Goodtitle v. Tombs, 3 Wils. 118, 121 ; Adams on Eject. 337 ; Dewey v. Osborn, 4 Cowen, 329 ; Dunn v. Large, 3 Doug. 335. In Maryland, the action for mesne profits is only for the use and occupation, and is no bar to an action of trespass quare clausum fregit for any other injuries done to the premises during the sanie period. Gill v. Cole, 1 Har. & J. 403.

3 Jackson v. Loomis, 4 Cowen, 168; Hylton v. Brown, 2 Wash. C. C. 165; Cawdor v. Lewis, 1 Y. & C. 427. But see Russell v. Blake, 2 Pick. 505.

4 Baron v. Abeel, 3 Johns. 481 ; Jackson v. Randall, 11 Johns. 405; Benson e. Matsdorf, 2 Johns. 369.

5 Goodtitle v. North, 2 Doug. 584. 6 Utterson v. Vernon, 3 T. R. 539.

(a) But if the tenant has made im- title was caused by his own inexcusable provements on the land, under a contract negligence. Foley v. Kirk, 33 N. J. Eq. with the owner, he will not be allowed 170. And the only improvements which for them in this action, when brought he will be allowed for are those which by a devisee, but has his remedy against have raised the value of the land, not the personal representatives of the devisor. valueless experiments. Noble v. Biddle, Van Alen v. Rogers, 1 Johns. (N. Y.) 81 Pa. St. 430. Nor improvements from Cas. 281. See ante, § 332. Nor will a which the plaintiff cannot get any value. defendant be allowed for such improve. Morris v. Tinker, 60 Ga. 466. ments if his ignorance of the defect in his


§ 338. Suit must be as executor or administrator. The evidence, under this title, relates to the official character of the parties, and to the cases and manner in which it must be proved. Where the executor or administrator is plaintiff, and sues upon a contract made with the testator, or for any other cause of action accruing in his lifetime, he makes profert of the letters testamentary, or of the letters of administration ;? for he must declare in that character, in order to entitle himself upon the record to recover judgment for such a cause; and if the defendant would controvert the representative character of the plaintiff, in such case, by reason of any extrinsic matter, not appearing on the face of the letters, such as the want of bona notabilia, or the like, he must put it in issue by a plea in abatement, or, as it seems, by a plea in bar;2 and cannot contest it under the general issue, this being a conclusive admission of the plaintiff's title to the character in which he sues. But in regard to causes of action accruing subsequent to the decease of the testator or intestate, such as in trover, for a subsequent conversion of his goods, or in assumpsit, for his money subsequently received by the defendant, and the like, though it is always proper for the plaintiff to sue in his representative character, wherever the money, when recovered, will be assets in his hands, yet it is not always necessary that he should do so. For where the action is upon a personal contract made with himself respecting the property of the deceased, or is for a violation of his actual possession of the assets, he may sue either in his private

1 1 Chitty on Plead. 420. The practice in the United States, in this respect, is not uniform ; the profert, in some of the States, being omitted. Langdon v. Potter, 11 Mass. 313; Champlin v. Tilley, 3 Day, 305 ; Amer. Prec. Decl. p. 91 ; Prettyman v. Waples, 4 Harringt. 299 ; Chapman v. Davis, 4 Gill, 166 ; Thames v. Richardson, 3 Strobh. 484. The rule requiring profert of letters testamentary is itself an exception from the general rule that profert is required of deeds only. Gould on Pleading, p. 442, § 43.

2 Langdon v. Potter, 11 Mass. 313, 316; 1 Chitty on Plead. 489 (358); 1 Saund. 274, n. (3), by Williams.

3 Loyd v. Finlayson, 2 Esp. 564; Marshfield v. Marsh, 2 Ld. Raym. 824 ; Gidley 0. Williams, 1 Salk. 37, 38; 5 Com. Dig. tit. Pleader, 2 D. 10, 14; Watson v. King, 4 Campb. 272 ; Stokes v. Bate, 5 B. & C.491 ; Yeomans v. Bradshaw, Carth. 373 ; Hilliard v. Cox, 1 Salk. 37 (2 Redfield on Wills, 187). VOL II.


or in his representative capacity.' (a) But in other cases, where the cause of action accrued in his own time, he must sue in his representative capacity, and must prove this character under the general issue, which raises the question of title.? (6)

$ 339. Proof of representative character. The proof of the plaintiff's representative character is made by producing the probate of the will, or the letters of administration, which, prima facie, are sufficient evidence for the plaintiff, both of the death of the testator or intestate, and of his own right to sue. (c) Where an oath of office and the giving of bonds are made essential, by statute, to his right to act, these also must be proved. The probate itself is the only legitimate ground of the executor's right to sue for the personalty, and is conclusive evidence, both of his appointment and of the contents of the will; (d) and if granted at

1 Hunt v. Stevens, 3 Taunt. 113, 115; Hollis v. Smith, 10 East, 293 ; Blackham's Case, 1 Salk. 290 ; 2 Saund. 47 c, n. by Williams ; Heath v. Chilton, 12 M. & W. 632. The allegation of his representative character, in these two cases, will be regarded as surplusage, and needs not be proved. Crawford v. Whittal, 1 Doug. 4, n. See also Powley v. Newton, 6 Taunt. 453, 457 ; Clark v. Hougham, 2 B. & C. 149.

? Smith v. Barrow, 2 T. R. 476, 477, per Ashhurst, J. ; Crawford v. Whittal, 1 Doug. 4, n. (1); Hunt v. Stevens, 3 Taunt. 113.

3 In an action on a promissory note made payable " to the executors of the late W. B.," it was held necessary for the plaintiffs to produce both the probate of the will and the grant of administration annexed to it. "Hamilton v. Aston, 1 C. & K. 679, per Rolfe, B.


(a) Thus, where the administrator letters of administration are not even leases lands which he holds as admini. prima facie evidence of death. Insurance strator, he may suo for rent in his own Co. v. Tisdale, Sup. Ct. U. S. 1875, 13

Yarborough v. Ward, 34 Ark.. Alb. L. J. 82. 204.

It has been held that the letters of adWhen the will charges the executor ministration of another state are not sufwith the collection of rent from the real ficient evidence of the character of the estate, he can sue for such rent. McDow. executor as executor, to allow him to sue. ell v. Hendricks, 71 Ind. 286.

Moseby v. Burrow, 52 Tex. 396. (6) Campbell v. United States, 13 Ct. (d) The decree of a probate court, apof Cl. 108. An administrator must sue in pointing an executor or administrator, his representative capacity for the negli- cannot be attacked collaterally, except by gent killing of his intestate. Denver, &c. proving that it is void, as for want of R.R. Co. v. Woodward, 4 Col. 1.

jurisdiction, for fraud, or that it is a for. (c) Pick v. Strong, 26 Minn. 303 ; gery; it cannot be attacked for irregularity, Davis v. Swearingen, 56 Ala. 31. The e. g. because issued on petition of one not plaintiff's declaration need not set out the interested in the estate. Pick v. Strong, probate of the will and qualification of the 26 Minn. 303. The decrees of a probate executor in full, but it must allege that court, as to the appointment of an adminis. they were had in the probate Court. trator, made in the exercise of its jurisHurst v. Addington, 84 N. C. 143. diction, are conclusive, in an action by the

It is only to support the executor's administrator against a stranger to recover right to sue, however, that these are prima a debt due to the intestate. Emery v. facie evidence. If the claim is based on Hildreth, 2 Gray (Mass.), 230. It would the death of the testator, it must be seem that where a probate court has jurisproved otherwise. Thus, in a suit upon diction of the subject matter, the validity a policy of insurance, where the death of its action can be tried only in the proof the intestate is clearly in issue, bate court, or in the appellate court sitting

any time previous to the declaration, it is sufficient, for the probate relates back to the death of the testator. The same principle governs in the case of an administrator; whose title though it does not exist until the grant of administration, relates back to the time of the death of the intestate, so as to enable him to maintain an action for an injury to the goods of the intestate, or for the price, if they have been sold by one who had been his agent.2 But the defendant may show that the probate itself, or the letter of administration, is a forgery; 8 or that it was utterly void, for want of jurisdiction over the subject, by the court which granted it;4 (a) whether because the person was still living, or because he had no domicile within the jurisdiction of the court, where this is essential ;5 or for any other sufficient cause.

§ 340. Same subject. The plaintiff's character as administrator may also be shown by an exemplified copy of the record of the grant of the letters, or by a copy of the book of acts or original minutes of the grant, as has already been stated. (6) If letters of administration have been granted to the wrong person, they are only voidable, and liable to be repealed; but if granted by the wrong court, they are void.

§ 341. When there are several executors. Where the plaintiff is bound to prove his representative character of executor, under the general issue, as part of his title to sue, and it appears that there are several executors, some of whom have not joined in the suit, it is fatal, though all have not proved the will; unless they have renounced the trust.? And where the plaintiff sues as ad

1 Smith v. Milles, 1 T. R. 475, 480 ; Woolley v. Clark, 5 B. & Ald. 744; Wank. ford v. Wankford, i Salk. 299, 301, 306, 307; Loyd v. Finlayson, 2 Esp. 564; 1 Com. Dig. 340, 341, tit. Administration, B, 9, 10; Dublin v. Chadbourn, 16 Mass. 433. The probate will be presumed to have been rightly made. Brown v. Wood, 17 Mass. 68, 72; ante, vol. i. $ 550.

2 Foster v. Bates, 12 M. & W. 226 ; Tharpe v. Stallwood, 6 Scott, N. R. 715. 8 Bull. N. P. 247; Chichester v. Phillips, T. Raym. 405.

* Bull. N. P. 143, 247 ; Noell v. Wells, 1 Lev. 235, 236 ; Emery v. Hildreth, 2 Gray, 230. 6 Harvard College v. Gore, 5 Pick. 370.

6 Ante, vol. i. $ 519. 7 Munt v. Stokes, 4 T. R. 565, per Buller, J. as the supreme court of probate. Ibid. (a) But this want of jurisdiction must See also Bellinger v. Ford, 21 Barb. (N. Y.) be apparent on the record. McFeely v. 311 ; Duson v. Dupre, 32 La. An. 896. Scott, 128 Mass. 16. So, the sufficiency of the bond cannot be (6) So certified copies of the letters collaterally impeached. Huntingdon v. testamentary, and his bond, are evidence Moore, 1 New Mex. 489. But the fact of of his appointment, without the will or such appointment, not its regulurity, may probate thereof. Wittman v. Watry, 45 be disputed in a collateral proceeding. Wis. 491. Denver, &c. Ry. Co. v. Woodward, 4 Col. i.

ministrator de bonis non, it is sufficient to prove the grant of administration to himself, which recites the letters granted to the preceding administrator, without other proof of the latter.1

§ 342. Statute of limitations. If the action is upon promises made to the deceased, to which the statute of limitations is pleaded, the declaration, according to the English practice, will not be supported by evidence of a new promise made to the executor or administrator; but in the American courts this rule is not universally recognized ; and where the plea is actio non accrevit infra sex annos, the weight of argument seems in favor of admitting the evidence.? (a) In both countries, leave will be granted to amend the declaration by adding a new count on a promise to the executor.

§ 343. Executor as defendant. If the defendant is sued as executor, his representative character may be shown, either by the evidence already mentioned as proof of that character in the plaintiff, or by proof of such acts of intermeddling in the estate as estop him to deny the title, constituting him what is termed an executor de son tort. Very slight acts of intermeddling have formerly been held sufficient for this purpose; but the material fact for the jury to find is, that the party has intruded himself

1 Catherwood v. Chabaud, 1 B. & C. 155.

2 2 Saund. 63, f. g., note by Williams. In Green (or Dean) v. Crane, 2 Ld. Raym. 1101, 6 Mod. 309, 1 Salk. 28, which is the leading case on this subject, the plea was non assumpsit infra sex annos, and to this issue it was held, that the evidence of a new promise to the executor would not apply. So in Hickman v. Walker, Willes, 27. In Sarell v. Wine, 3 East, 409, Jones v. Moore, 5 Binn. 573, and Beard v. Cowman, 3 Har. & McHen. the form of the issue is not stated. In Fisher v. Duncan, 1 Hen. & Munf. 563, and in Quarles v. Littlepage, 2 Hen. & Munf. 401, the action was against the executor; and the point in question was therefore not before the court. On the other hand, in Heylin v. Hastings, Carth. 470, it was held, upon the issue of non assumpsit infra sex annos, that evidence of a new promise to the executor within six years was admissible, as well as sufficient, to take the case out of the statute. And such also is the practice in Massachusetts, and in Maine. Baxter v. Penniman, 8 Mass. 133, 134 ; Emerson v. Thompson, 16 Mass. 428 ; Brown v. Anderson, 13 Mass. 201 ; Sullivan v. Holker, 15 Mass. 374. Where the issue is actio non accrevit infra sex annos, the technical reason for not admitting evidence of an acknowledgment or prom. ise to the execntor entirely fails ; and, indeed, in any case, a promise to the execntor amounts only to an admission that the debt due to the testator has never been paid, but is still subsisting, and therefore is not barred by the statute of limitations. See 5 Binn. 582, 583, per Breckenridge, J.; Angell on Limitations, ($ 268, 6th ed.).

3 After notice to produce the probate of the will, an office-copy and an extract from the act-book have been held admissible, without proof that the probate was in the defendant's possession, or of the signature of the registrar. Waite v. Gale, 9 Jur. 782.

(a) A new promise by an executor, which and founded on assets, will bind the exec. revives a debt barred by the statute of utor personally. Oates v. Lilly, 84 N. C. limitations, will not bind the estate, but 643. if made on consideration and in writing,

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