Page:Harvard Law Review Volume 4.djvu/128

112 112 HARVARD LAW REVIEW. different from trying the issue which they had been impanelled to try, and something which they were not competent to do properly. The matter must, however, be looked at from still another point of view. Independently of any of the changes before referred to, the issue joined upon a traverse of a plea of plene administravit always involved an anomaly in respect to the burden of proof. That issue was, as we have seen, whether the executor had any assets in his hands applicable to the payment of the plaintiff's debt, or any more than he had admitted having. Upon this issue the plaintiff held the affirmative; for if the executor had assets which he denied having, that was an affirmative fact ; and yet the executor had the burden of proof, for the issue was joined upon a traverse of his affirmative plea (/.^., affirmative in law, though negative in fact), and, therefore, he must prove his plea in order to succeed in the action. But how could the executor prove that he had no assets, or only a stated amount of assets? Of course he could show what assets he had disposed of, and how; but that would signify nothing until it appeared what assets he had received. How could this latter fact be made to appear? Only in one way, namely, by proof on the part of the plaintiff; and hence the anomaly just alluded to, and which consisted in this, namely, that, while the executor had the burden of proof, the plaintiff (the creditor) had to begin at the trial by proving the receipt of assets by the executor, and then the executor proceeded to show what had become of the assets with which the plaintiff's evidence had charged him ; and this anomaly existed equally, whether the jury were confined to a trial of the issue, according to what the writer conceives to have been the original and proper practice, or whether they were required to take an account, accord- ing to the modern practice.^ But how could a creditor of the testator prove what amount of assets the executor had received? Clearly, he could not do it (except by accident) without the executor's assistance; and yet a common-law court had no means of compelling an executor to give such assistance to a creditor. The creditor could, of course, file a bill for discovery, but that 1 In Dean and Chapter of Exeter v. Trewinnard, Dyer, 80 a, in the time of Edward VI., to a scire facias against an administrator on a judgment recovered against the intestate, the defendant pleaded plene administravit, on which there was an issue ; and the reporter says: " In giving the evidence to the jury the defendant commenced first. Note this, for I believe it is unusual, because he is in the negative, for the conclusion of plene administravit is, and so nothing within his hands {riens entre mains)"