Page:Harvard Law Review Volume 4.djvu/126

110 no HARVARD LAW REVIEW, was joined on the traverse of a plea of plene administravit} and the jury found that the executor had assets to the amount of ;^I75 only, the court, while holding that the plaintiff was entitled to judg- ment for ;^200, besides damages and costs, intimated that the plaintiff would be entitled to levy only £1^^ ; and, in the time of Charles I., in a case similarly circumstanced, the court said: " When it is found that the defendant hath some assets, although of little value, so as he hath not fully administered, the plain- tiff shall have judgment for the entire debt, but he shall not have execution but of as much as is found, and shall not be barred for the residue; and if more assets come after- wards, he may have a scirs facias to have execution thereof." ^ This is certainly an extraordinary doctrine, as it involves a plain contradiction. The court, having given judgment that the plain- tiff recover his entire debt, to be levied of the goods and chattels of the testator in the executor's hands (/.^., the whole of it to be so levied, and levied immediately), said, nevertheless, that the plain- tiff could, by virtue of that judgment, have execution for a part of his debt only, and that, in order to obtain an execution for the remainder, he must bring a scire facias (?>., a new action in effect), prove new facts, and obtain a second judgment, — which, however, could be (and was) only a repetition of the first. And yet this doctrine continued to be recognized and acted upon until the time of Lord Mansfield.^ That it was, however, a departure 1 An executor's plea of want of assets is commonly called a plea oi plene administravit, because it begins with an allegation that the defendant hath fully administered all the goods and chattels which were of his testator at the time of his death, but then the plea immediately adds, that the defendant hath no goods or chattels which were of said testator at the time of his death in his hands to be administered, nor had at the com- mencement of the action, or at any time since ; and this negative allegation is the material part of the plea, and the part on which a traverse must be taken. Reeves v. Ward, 2 Bing. N. C. 235. The plea was also formerly known as a plea of riens entre mains, and that seems to be a better name for it than//^«<f administravit. See infra, p. 120, n. (2). 2 Dorchester v. Webb, Cro. Car. 372-373. 8 Thus, in the great case of the Bank of England v. Morice, 2 Str. 1028, Cas. /. Hardw. 219, which was decided during Lord Hardwicke's chief justiceship, and in which the form of the judgment was specially considered and settled by the court, the jury found that the plaintiff's debt amounted to ;^28,993 8s. id., and that the defendant had assets, applicable to the payment of the plaintiffs debt, amounting to ;^i4.659 12s. gd. ; and the judgment was in efTect that, inasmuch as the assets amounted only to the sum last named, therefore the plaintiff recover his entire debt, with costs amounting to ;^200 7s. 7d., thus making in all ;^29,i93 15s. 8d., to be levied de bonis testatoris ! See Cas. t. Hardw. 230-31, where the judgment is given verbatim. It is not too much to say that this judgment is upon its face quite unintelligible.