#### M. J. Ford, Commissioner in Equity, *v.*The Administrator of William Rouse.

A plea of *plene administramt,*if filed without “ a full and particular account of the defendant’s administration, upon oath, accompanied by an office copy of the inventory and appraisement of the estate,” as required by the 6th Rule of Court, (1 Con. Rep., xiv.) is improper, and may be stricken out on motion.

A plea that “ due notice was given to creditors to render in their demands against the defendants intestate, and that in default thereof by the plaintiff, to render an account of his demand, all the goods and chattels of the intestate, which were at the time of his death, and which have ever come into the hands of the defendant as administrator, have been distributed; and that the defendant hath not, nor on the day of the commencement of this suit, or at any time since, hath or had any of the goods or chattels of the intestate," but the same are fully administered,” &c. is only another variety of the plea of *plene administramt,*and is equally objectionable with that plea, if filed without the account, inventory, &c. required by the 6th Rule of Court.

Such a plea is also, objectionable, as pleading a matter *specially,*which could properly be put in issue under the plea of *plene administramt,*by the plaintiff’s replication and the defendant’s rejoinder.

Such a plea as the above, (independently of these objections) is no answer to the plaintiff’s declaration. The plaintiff seeks to recover *now*his debt out of the assets of the intestate. The only answer for the want of assets is *plene administramt,*generally, or *prater.*This is neither the one or the other in a legal point of view, and cannot be allowed as a bar to the plaintiff’s demand.

The object of the 27th sec. of the act of 1789, P. L. 494, whichj>rovides “ that every executor or administrator shall give three weeks’ notice, by advertisement,|¡for creditors to render an account of their demands ; and that they shall be allowed twelve months to ascertain the debts due to and from the deceased ; and as to creditors neglecting to give in a statement of their debts within the time aforesaid, the executors ór administrators *shall not be liable to make good*the same, &c.” is to protect an executor or administrator from a *personal*liability for the debt not rendered in.— If there still remain an abundance of assets, in the hands of the executor or administrator, it would be no objection to the plaintiff’s recovery, that the executor or administrator had given the legal notice, and that the plaintiff had failed to give a state of his debt. The plaintiff vvould still be entitled to a judgment *de bonis testatoris.*

*220The only four cases, *it seems,*where an executor or administrator would be estopped from denying assets, are 1st, where he confesses judgment; 2d, where he suffers judgment by *default;*3d, where he pleads *plene administravit,*and 4th, where he pleads *plene administravit*generally, or *prater,*and his plea has been traversed, and the jury find a sum *ultra*in his hands.

In this state, *a devastavit*can only be established against an executor or administrator, 1st, by establishing- the testator’s debt by matter of record (i. e. a judgment recovered against the executor or administrator *de bonis*testatoris) ; 2d, assets admitted by the defendant’s *plea,*confession, or default, or found by the verdict of a jury, on and against the plea of *plene administravit*generally, or *prater;*and 3d, that the defendant has wasted such assets. The only other mode of reaching an administrator *personally,*is by an account before the ordinary, or in equity, preparatory to a suit on his bond.

A plea by the defendant, an administrator, of a decree in equity, in a case to which the plaintiff was no party, is a plea of *res inter alios acta,*and no bar of the plaintiff’s right of action.

*Before O’NEALL,*/., *at Charleston, Spring Term,*1837.

Tins report of his honor, the presiding judge, is as follows:— “ This was an action of debt on bond. The defendant pleaded *non est factum,*on which issue was joined, *plene administravit,*but filed no account therewith, and two special pleas in bar: 1st, that due notice was given to creditors of the deceased to render in their demands; and 2d, a bill by the distributees against the defendant and such creditors as were known, and a decree of the court of equity, directing a payment over of the funds in his hands. The plea of *plene administravit*was ordered to be stricken out, for want of an account of the defendant’s administration. To the two special pleas there was a demurrer, which I sustained. As to the first, it is no answer to the plaintiff’s case. To say that the creditors were notified to bring in their demands, is not showing any cause why the plaintiff should not be paid. If connected with notice, there had been full administration by paying debts of inferior degree, then indeed the plaintiff could not have recovered; but to make this defence, the plea of *plene administravit,*with an account of the defendant’s administration, was the proper plea. The defendant’s second plea, if of any sort of avail, *221was a mere variation of *plene administravit prater,*and without the account of the defendant’s administration could not be noticed. As a plea of a recovery in equity, it could not bind this plaintiff, unless he had been party thereto, which it did not pretend. The plaintiff proved his case under the plea of *non est factum,*and had a verdict.”

The defendant appealed, and now moves to reverse the judgment below, on the demurrer in this case, upon the ground, that the several pleas filed were sufficient in law to bar the recovery of the plaintiff, and judgment should have been rendered accordingly.

Curia, per O’Neall, J.

In relation to the defendant’s plea of *plene administravit,.*it is only necessary to apply the 6th rule of court, and it cannot; be received: (Rules adopted in 1814, 1 Con. Rep. Mill, xiv.) The language of the rule is — “ No plea *oí plene administravit*shall be admitted in any action against executors or administrators, unless the defendant pleading such plea do file with the same, in the clerk’s office, a full and particular account of his administration, upon oath, with an office copy of the inventory and appraisement of the estate; to the end that it may appear to the court, that the personal assets of the testator or intestate are really administered to the extent pleaded by the defendant.”— Without “ the full and particular account of the defendant’s administration upon oath, accompanied by an office copy of the inventory and appraisement of the estate,” the defendant’s plea was improperly filed ; and when this objection was presented to the court, to strike out the defendant’s plea was the only course which the court could pursue, if the rule of the court was to be enforced. The first special plea, “ that due notice was given to creditors, to render in their true demands against the defendant’s intestate, and that in default thereof by the said plaintiff, to render in an account of his demand, all the goods and chattels of the said William Rouse, deceased, which were at the time of his death, and which have ever come into the hands of the said William T.,- as administrator as aforesaid, have been distributed; and that the said William T. hath not, nor on the day of the commencement of .this suit, or at any time since, hath or had' any of the goods or *222chattels of the said William Rouse, deceased, but the same are fully administered,” &c. is, in fact, but another variety of *plena administravit,*and is subject to the objection already stated to that plea. This is indeed pleading a matter specially, which could properly be put in issue under *plane administravit,*by the plaintiff’s replication and the defendant’s rejoinder. For, if that plea had been accompanied by defendant’s accounts, the plaintiff might have replied the payment of debts out of their legal order, and averred that his debt was entitled to priority of payment. To this the defendant would have rejoined, that he gave the due notice for creditors to render in an account of their demands, and that the plaintiff failed to do so. This is the regular course of special pleading, and „when a defendant reverses it by pleading his rejoinder, it is so untechnical that a *lawyer*would hardly expect to make much progress by it. But, to give him an advantage, by so doing, can never be allowed, tie cannot thus be permitted to get rid of what is so distinctly required by the rule of court, *the filing with the plea an account on oath of his administration.*But, as a plea, it is no answer to the plaintiff’s declaration; he seeks to recover now his debt of the assets of the intestate. The only answer for the want of assets, is *plane administravit,*generally, or *prater.*This is neither one or the other, in a legal point of vie.w, and cannot be allowed as a bar to the plaintiff’s demand. The 27th section of the act of 1789, (P. L. 494,) provides “ every executor or administrator shall give three weeks’ notice, by advertisement in the State Gazette, or, at three different places of the most public resort in the parish or county, for creditors to render an account of their demands; and they shall be allowed twelve months to ascertain the debts due to and from the deceased, to be computed from the probate of the will, or granting letters of administration. And creditors neglecting to give in a state of their debts within the time aforesaid, the executors or administrators shall not be liable to make good the same, nor shall any action be commenced against executors or administrators for the recovery of the debts due by the testator or intestate, until nine months after such testator’s or intestate’s death.” The object of this provision, in relation to notice *223to creditors is, to protect an executor or administrator from a personal liability for the debt not rendered in. If there still remains an abundance of assets in the hands of the executor or administrator, it would be no objection to the plaintiff’s recovery to say, “ you had the legal notice, but failed to give me a state of your debtfor, the executor or administrator would not' be called on to make the same good.

So here the defendant has failed to plead plene administravit properly, and must be regarded as in possession of assets sufficient to pay the plaintiff’s demand. If, however, this is regarded as being rather technical, in visiting upon a defendant the consequences of mispleading, let us ask the question, is the defendant now in fact or in law, sought to be made liable personally for the plaintiff’s debt ? I think not. *The judgment*which will be recovered is de bonis testatoris. In an action of debt on this recovery, suggesting a devastavit, then the issue will be, shall this defendant make this plaintiff’s debt good. If the pleading here would preclude this question, then perhaps we might hesitate about closing the only door by which the defendant might escape. But the pleading left upon record under the circuit, decision, will 'be non est factum merely. The only four cases where an executor or administrator would be estopped from denying assets are, 1. Where he confesses judgment. *2.*Where he suffers judgment by default. 3. Where he pleads plene administravit; and 4. Where he pleads plene administravit generally or piaster and his plea has been traversed, and the jury find a sum ultra in his hands.* In Bacon’s Abridgment, title Executors and Administrators, letter M., fig. 1, it is said, “But if an executor pleads that such a deed is not the deed of his testator, or that a release was given by the testator, though these prove false, yet the judgment shall be de bonis testa-toris, for of these the executor cannot be supposed to have *so*perfect a knowledge.” In Brown v. Hillegas et ux., *2*Hill. 450, it is said, “An executor or administrator is not to be made liable de bonis propriis, until his devastavit is legally and formally establish*224ed. In this State, this can only be done by establishing first, his testator’s debt by matter of record, (i. e. a judgment recovered against the executor or administrator de bonis testatoris). Second, assets admitted by the defendant’s plea, confession or default, or found by the verdict of a jury on and against the plea of plene administra vit, generally or prseter; and third, that the defendant has wasted such assets.” Under these rules, it is plain that the defendant is not in any danger of a personal liability in an action of debt suggesting a devastavit. The only other mode of reaching him personally is by an account before the Ordinary, or in Equity, preparatory to a suit on his bond. There the matter of this plea will be properly and rightfully examined, and if it be true, as is alleged, the defendant will have the benefit of it. The defendant’s other plea is of a decree in equity, in a case to which this plaintiff was no party. As to him it is *res inter alios*acta, and according to a principle of law as old as its administration, cannot bar his right of action, and is therefore no defence to be pleaded by the defendant.

*Hunt,*for the motion.

*Memminger,*contra.

The motion to reverse the circuit decision is therefore dismissed.

Evans, Buteer, Richardson and Eaexe, Justices, concurred.

*

 See Givens v. Porteous, 1 M'Cord. 379; Brown v. Hillegas et ux., *2*Hill. 447.