#### The Surviving Partners of Auley McNaughton & Co. v. Blocker’s Administrators.

A payment msulc &Per the *teste*of the writ, is not good in suppoit of the plea o *i' pie,te a-lmiiiistnivit.*Judgments obtamed against an administrator after the *leste*of the writ and before the time of pleading, may be plead at tne proper timo. Debts assumed by the ad* ininistrator before the teste of the writ, must be allowed him to the .-unount of his assumptions.

Case upon assumpsit, for goods, wares and merchandize. sold and delivered; and the Plaintiffs proved their case sufficiently, and established a demand Jo (lie amount of *£ S94.*The Defendants lmd pleaded *plene adminislra-oiL*They proved effects came to his hands to the amount if *£*1,072. The administrator gave in evidence sundry debts paid before the institution of this suit; also divers debts paid after the teste of the leading process (which in tiiis case was a *sci.fa.*against the administrator, to make him a party to the suit) and before the plea pleaded, He liad also pleaded judgments had against him as ad - ministrator, previous to Cue time of his pleading ; and ho proved several judgments had against him after the testo of the writ, and before he had notice thereof, and before plea pleaded. He also proved assumptions made by him-, mili, to pay several debts of the intestate to i large amount, prior to the teste of the writ.

*JlIr. Moore*and *Mr. Hay,*for the Plaintiffs,

argued that the common iaw of England, with respect to executors and administrators, is the law here, unless where it has been altered by acts of the Legislature, passed since the. y«ar 1778, where the common law of England was enforced here by act of Assembly ; and although the Judges may be inclined to think some part of that law, as it respects executors ami administrators, more strict than is perfectly, consistent with Equity, yet as they are to ex-oomsd, not make the lan, and as the Legislature have never altered these seemingly exceptionable parts, it is the business and doty of the judiciary to declare it as it really is. Then as to-voluntary payments made after tin- teste of the writs, it is a clear position, that they arc ¡Ilegal. When a suit is once instituted, it takes from the administrator the option ho before had, of first paying what creditor in equal degree, he thought proper. He can no otherwise prefer a creditor of equal degree, than by confessing a judgment to him time enough to be *482pleaded in bar (o the former action. The plea of *¡¡lene administravit*does not, as is supposed on the oiher side, relate to (he time it is pleaded, so as that a payment made prior to that time will support it. The form of pleading is one of the best evidences of what the law is ; and the uniform tenor of this plea is, that the Defendant hath fully *administered;*and that at the time of the action brought, or at arty time since, there were not in the hands die administrator, any of the effects of the intestate to' be administered. The words at the time of the action brought, or any time afterwards, are so essential, that without them the plea would be vitious. 3 *Lev. 38. Bat*a payment after the time, proves there were assets after the teste in the hands of (be administrator, and disproves that part of the plea. A bare stating of the essential parts of this plea answers what is insisted on for the Defendant, as to its relation to the time of pleading. It also proves a relation of the plea to the teste of the writ, and that the administration to be good, must have been before not after that time, whether any notice be given to the administrator or not. Notice is no way to be considered — it is not stated in the plea nor need it to be — it is not more hard to compel the administrator to take notice of the commencement of a suit against him, than it is to take notice of judgments obtained against his intestate in his lifetime in every court throughout the country — he is undoubtedly bound to this under the pain of a *devastavit.*It may possibly operate injustice in some cases, lo require an administrator to take notice of a suit at (he moment of its commencement, and before he has actual notice, under the penalty of a *devastavit,*yet no doubt the rule was originally established upon proper principles, yvbich would shew themselves as soon perhaps in consequence of an infraction of the rule, as by any oilier means- Many of the old rules of the common law appear useless and unjust to a hasty observer, and sometimes to a critical one j but once broken in upon, are succeeded by such a train of evils, as abundantly demonstrate the wisdom of antiquity in framing them. They ought not to be removed by the violence of any rude hand, nor without great circumspection, and never by the judiciary. As to the evidence of divers debts assumed before the teste of the writ, they were assumed as administrator, whereby is clearly implied, that he is only to be *483Hable in that character; and then he stands precisely in the same situation he did before, as to other creditors — a promise to pay the debts as administrator, did not oblige him *in proprio jure.*It is not like the case of a bond given by the administrator to pay the debt of the intestate, and accepted in lieu thereof, by the creditor.

*Taylor*in reply

The law cannot be as stated by the Plaintiff's counsel, that payments made by the administrator after the teste, and before notice of the writ, are not allowable as evidence in support of the plea of *plene adminislravit.*Common sense and common justice require, that the administrator shall have notice from the creditor of bis demand, before he is bound to attend to it, or can commit a *devastavit*or misapplication of the assets by paying other creditors. How can the institution of a suit, where the writ is taken out perhaps in the most secret manner, be calculated to afford this notice to the administrator? Why will the law compel him to take notice of that circumstance ? Why require a thing so unreasonable in itself? The argument of the Plaimiff’s counsel proceeds upon the form of the plea, but that is not the only form — it is only calculated to fit the case, where in fact a full administration had taken place at the time of, the commencement of the suit. But if the case were not so situated, but the administration had taken place after the teste of the writ and before notice, I apprehend the plea might state that fact, and say the writ was taken out on such a day, and that the administrator first had notice thereof on such a day, before which day he had. fully administered. The plea in the present case is not drawn out at large, but by agreement between the counsel on either side, is supposed to be drawn out at full length. We may as well suppose (tie plea of *plene ail-ministravit*to be of this latter form, as of thai stated by the Plaintiff’s counsel. I can sec no reason why such a plea should not he good. As to the assumpsit, it was made before the teste of the writ, if it give a security for the debt upon the Defendant *in jure proprio,*he ought to be allowed it as a payment as adinmistt aior, as much as if it had been a bond, and >hat undoubtedly would have entitled him to an allowance to the amount of the bond. — ■ 2 *Vent.*358. An assumpsit though made as administrator, being made subsequent to the death of tiie intestate, ' is not a contract chargeable upon the estate of the de~ *484ceased. No contraéis are chargeable upon that fand/biit suc|, a;. Were made by the deceased, except in a few instances, such as funeral expenses and the like, which are necessarily occasioned by the death of the intestate— Were it allowed to executors-or administrators to make contracts chargeable upon the estate of the deceased, no dead man’s estate would be safe : besides it will not be denied, that where an executor or administrator undertakes to pay a debt of the deceased, he becomes thereby, absolutely bound to do it. He makes it his own proper debt — no excuse for want of assets or the like will save hint. As to the judgments obtained before they pleaded, I will say nothing in respect to them, since the reasoning of the Plaintiff’s counsel admits, that a judgment ob-tai nod after a suit commenced, but before the Defendant is bound to plead, may be pleaded in bar to the suit, and of course that plea need not relate to the teste of the writ.

Per *curiam*

W jxiiams absent. The plea of fully administered, as to its form, is as stated by the Plaintiff’s counsel; and in strictness, a payment made after the teste is not good in support of *plens administravit.*As to judgments obtained after the teste, they may be pleaded bj tin; administrator, if obtained before the plea pleaded at its pioper time. As to debts assumed by the administrator before the teste of the writ, such assumption obli- . ges him to pay the debt as effectually as if he had given a bond. He must therefore fee allowed to the amount of his assumptions.

Noth.- Th>. first part of this opinion was incorrect — if in fact the •payments were made after the teste, and before notice, that should be staled in the plea ; and then the payments before notice may be given in evidence hy (he administrator *Offi- Exec.*145. *God. Orp. Leg.*220. *Plow. Com*277.

Noth.— *Vide*note, to *Evans*v. *Norris’s Adm’rs. ante*411. *Littlejohn v. Underhill's Ex’rs.*2 *Car. Law Rep. 574.*