Page:Harvard Law Review Volume 4.djvu/120

104 104 HARVARD LAW REVIEW, to do so, but no further. He was not, therefore, regarded as per- sonally owing the debt, and, though an action of debt lay against him, he was liable only in the detinet, — not in the debet et detinet. Thirdly, the executor still retained so much of the character of his prototype, the Roman heir, that the law always assumed that the assets in his hands were sufficient for the payment of debts, until the contrary appeared ; and hence the creditor never had the burden of alleging and proving that the executor had sufficient assets to pay his debt.^ Fourthly, if the executor had not sufficient assets to pay the plaintiff's debt, he had to set up that fact as an affirmative defence and prove it. If he failed to set it up, or failed to prove it, and the plaintiff recovered in consequence, the verdict and judgment, or (if the judgment was by default or on demurrer) the judgment alone, established conclusively that the executor had sufficient assets, it being a universal principle that a defendant who fails to set up or to prove an affirmative defence at the proper time, loses the benefit of it, the law acting on the supposition that he has no such defence, and not permitting him to say to the con- trary .^ Therefore, fifthly, the question whether the executor had assets to pay the plaintiff's debt was always settled conclusively at the trial. If it appeared that he had not, there was a verdict and judgment in his favor, and the plaintiff paid costs. If it did not so appear, there was (in the absence of any other objection to the plaintiff's recovering) a verdict and judgment for the plaintiff, in which event the executor had to pay the judgment, even though he paid it out of his own pocket. Still, sixthly, the judgment, in accordance with the legal theory of the executor's liability, was only that the plaintiff recover the amount out of the assets of the testator in the executor's hands, or, in technical language, the judgment was de bonis testatoris, — not de bonis propriis. In short, while the judgment established the liability of the executor con- clusively, it did so, not by making the debt of the testator his debt, but by proving conclusively that he had assets of the testator suf- ficient to pay it. Seventhly, when an execution was issued on a judgment against an executor, a failure by the latter to show to the sheriff goods of the testator out of which the amount of the judg- ment could be made, proved that the executor had wasted or con- 1 William Banes's Case, 9 Rep. 93 b. 2 Rock V. Leighton, i Salk. 310. Comyns, 87, i Ld. Raym. 589, 3 T. R. 690; Rams- den V. Jackson, i Atk. 292; Erving v. Peters, 3 T. R. 685; Leonard v. Simpson, 2 Bing. N. C. 176; Palmer v. Waller, i M. & W. 689.