THE LAW OF PLEADING AND EVIDENCE IN CIVIL ACTIONS, ARRANGED ALPHABETICALLY: WITH Practical Forms: AND THE PLEADING AND EVIDENCE TO SUPPORT THEM. BY JOHN SIMCOE SAUNDERS, ESQ. BARRISTER AT LAW. SECOND AMERICAN EDITION, WITH CONSIDERABLE ADDITIONS, BY A MEMBER OF THE PHILADELPHIA BAR. VOLUME II. Philadelphia: ROBERT II. SMALL, LAW BOOKSELLER, MINOR STREET. ........ 1831. FORM OF REMEDY, AND THEIR LIABILITIES, 505. FORM OF PLEADINGS, 506. PRECEDENTS, 508. EVIDENCE FOR PLAINTIFF, 511. EVIDENCE FOR DEFENDANT, 513. [*505] Form of Remedy against, and their Liabilities. THE form of remedy against an executor or administrator, is, in general, the same as against other parties. In actions against executors, all the defts. who are named as executors in the will, whether they have proved the will or not, may be made defts. ; but, if they have proved the will, they must be joined: Lev. 161. And so, in the case of administrators, all who have administered must be joined, Rast Ent. 324, or the nonjoinder is a cause of abatement: ib. But, if an act be done by one executor only, he is liable singly, as in detinue of charters, where they came to the hands of one executor only, or in dower against one executor only as guardian, who alone possessed the ward: 8 Ed. 3, 420. Executors and administrators are liable as representatives of the deceased, whether expressly named or not, as far as they have assets, for all his debts, covenants, and other contracts: 3 Bac. Ab. 95. An action, therefore, lies against an executor for all debts due from the testator by judgment, statute, recognizance, obligation, or other debts by record or specialty: Com. D. Admin., 314; Off. Ex. 118. So, an action lies on inferior debts of record, as issues forfeited, fines imposed, &c., ib.; it also lies on the testator's obligation, or on his covenant, as to pay rent, Billinghurst v. Speerman, Salk. 297, or to repair premises, or on simple contract of the testator, either in writing, or by parol, express or implied; as, on bills, notes, debt for rent on a parol lease, Com. D. Admin. B. 14; or assumpsit for money had and received by the testator to the plt.'s use, ib.; or for provisions furnished by a gaoler for the testator in prison, 9 Co. 876; or, as it seems, against VOL. II. 2 |