Young v. Case, ii. 210 h. v. Cole, i. 269 d. v. Collet, ii. 148 a. V. Higgon, ii. 375 a. 378 d. v. Holmes, i, 280 e. v. Johnson, ii. 70 d. v. Timmins, ii. 156 a. Middlesex, to wit. BE E it remembered, That heretofore, to wit, in the term of Easter last past, before our lord the king at Westminster, came Nicholas Jevens by Robert Powlet his attorney, and brought here into the court of our said lord the king, then there, his certain bill against Rowland Harridge, and Johanna his wife, administratrix of all and singular the goods and chattels, rights and credits, which were of Reve Levemere, who died intestate, as it is said, otherwise lately called Reve Levemere, of the parish of St. Martin's aforesaid, gent., being in the custody of the marshal, &c. of a plea of debt; and there are pledges of prosecution, to wit, John Doe and Richard Roe, which said bill follows in these (1) So is Cro. Jac. 411. Bailiffs, &c. of Ipswich v. Martin. If the whole rent incurs in the life of the lessee, the action against his executor must be in the detinet only. 1 Roll. Abr. 603. (S), pl. 9. 1 Sid. 379. pl. 10. Fruen v. Porter. But for the rent incurred after the death of the lessee, the action may be brought either in the debet and detinet, if the executor enters; 5 Rep. 31. Hargrave's case, 1 Roll. Abr. 603. (S), pl. 10. Wentw. Ex. 194. Cro. Jac. 238. Lord Rick v. Frank. All. 34. Caly v. Joslin; for the executor is charged as assignee VOL. I. in respect of the perception of the profits, and it is not material whether he has assets or not; 1 Lev. 127, 128. Helier v. Casebert. Freem. 171. Sackville v. Evans; therefore he cannot plead plene administravit; 1 Salk. 317. Buck- · ley v. Pirk, All. 34.; and if judgment be given against him, it is de bonis propriis. Went. 194. But if the land be of less value than the rent, he may plead the special matter, viz. That he has no assets, and the land is of less value than the rent, and pray judgment whether he shall be charged otherwise than in the B JEVENS V. words, that is to say; Middlesex to wit, Nicholas Jevens comHARRIDGE. plains of Rowland Harridge, and Johanna his wife, administratrix of all and singular the goods and chattels, rights and credits, which were of Reve Levemere who died intestate, as Declaration. detinet only; 1 Salk. 297. Billinghurst v. Spearman, ibid. 317. (a) Or it may be in the detinet only; All. 42. Royston v. Cordrye. 3 East, 2. Hope v. Bague; for the lessor has his election; Freem. 337. Boulton v. Canon; and the judgment in that case is de bonis testatoris. (b) So if the executor does not enter, he is still chargeable in the detinet; because he cannot so wave the (a) See 8 Taunt. 191. Remnant v. Bremridge. 2 B. Moore, 94. S. C., in which it was held, that in an action of assumpsit for use and occupation against a person who was executor, the special matter may be given in evidence under the general issue. [If such a special plea as above suggested be pleaded to the whole rent in the declaration, it will not be a good bar, unless it shews that there were no profits at all; because the executor is chargeable personally for so much of the rent as the premises are worth: if, therefore, the profits have been less than the rent, and therefore cover a part only, that part should be confessed, and the plea pleaded to the remainder. 4 B. & Adol. 241. Rubery v. Stevens. 1 Nev. & M. 182. S. C. See post. p. 112. note (c). As to what shall be considered the real value of the premises, see 11 A. & E. 645. Hornidge v. Wilson. 3 Perr. & D. 641. S. C. post. 112. note (c).] (b) So for rent arrear, partly in the lifetime of the lessee, and partly since his death, the action is well brought in the detinet only. Aylmer v. Hide, M. 13 Geo. 2. B. R. MS. cited in Selwyn's Ni. Pri. 596. In this case the plaintiff must sue the defendant in his term as not to be liable for the rent, as far as he has assets. 1 Lev. 127. Helier v. Casebert. (c) So in covenant for rent incurred after the death of the lessee, the lessor has his election to charge the executor, either as executor, in which case the judgment must be de bonis testatoris; 1 Salk. 317.; or as assignee, if he enters (d), without naming him executor, stating generally representative character for the former part of his demand, and he may so sue him for the latter part; and wherever the defendant is sued in his representative character, the action must be in the detinet only. But it cannot be brought in the detinet for part, and in the debet and detinet for the other part in the same action; for then two different judgments would be necessary. 3 Lev. 74. Salter v. Codbold. Where a plaintiff declares in the debet and detinet in a case which ought to be laid in the detinet only, the declaration is liable to be demurred to: but it is otherwise where the plaintiff declares in the detinet only in a case which might and strictly ought to be laid in the debet and detinet; for a party may abridge his demand, although he cannot extend it. 4 M. & S. 120. Wilson v. Hobday. (c) 1 Salk. 297. Billinghurst v. Spear man. S. P. Yelv. 103. Howse v. Webster. (d) [But even if he does not enter, he must not traverse that he is assignee; for, on that issue, the evidence that he is executor will prove the affirmative. 3 Scott. N. C. 593. Wollaston v. Hakewell. Post. 112. note (c).] JEVENS v. HARRIDge. * Post. 14. [2] between plainBy indenture tiff and intes tate, it is said*, otherwise lately called Reve Levemere, of the parish of St. Martin's aforesaid, gent., being in the custody of the marshal of the Marshalsea of our lord the king, before the king himself, of a plea, that they render unto him 107. note (1). of lawful money of England, which they owe to, and unjustly detain from him; for that whereas the said Nicholas, on the 26th day of November, in the 15th year of the reign of our lord Charles the Second, now king of England, &c. was seised of and in a certain messuage, with the appurtenances, in the parish of St. Martin in the Fields, in the said county, in his demesne as of fee; and being so thereof seised, the said Nicholas by his certain indenture, bearing date on the said 26th day of November, in the said 15th year of the reign of our said lord the now king, made at the parish aforesaid, in the county aforesaid, between the said Nicholas, by the name of Nicholas Jevens, of the parish of St. Martin in the Fields aforesaid, in the county aforesaid, coachman, of the one part, and the said Reve in his lifetime, by the name of Reve Levemere, of the parish of St. Martin aforesaid, gent., of the other part; (the other part whereof, sealed with the seal of the said Reve in his lifetime, he the said Nicholas here into court brings, the date whereof is the same day and year aforesaid;) by which said indenture he the said Nicholas demised plaintiff let to to the said Reve in his lifetime, a certain messuage with the him a mesappurtenances, by the name of all that brick messuage or tenement, with the yard, or back side, thereunto adjoining, as the same theretofore was in the occupation of the said Nicholas Jevens, and then was in the occupation of the said Reve Levemere, or his assigns, situate and being in Little Bridgesstreet, and near Vinegar-yard, in the said parish of St. Martin, with all lights, easements, profits, commodities, and appurtenances whatsoever, to the same premises belonging, or in the declaration, that the estate of the lessee in the premises lawfully came to the defendant; in which case the judgment shall be de bonis propriis. 1 Ld. Raym. 553. Tilney v. Norris. S. C. (e) [Although, in respect of rent, the personal liability of the executor does not exceed the value of the demised premises, yet it has been held that this suage. 1 Salk. 309. Carth. 519. 1 Salk. 317. Buckley v. Pirk. See 10 East, 313. Wilson v. Wigg. 1 Wils. 4. Lyddall v. Dunlap, post. 112. (e) qualification does not extend to a covenant for repairs. 1 Bing. N. S. 89. Tremeere v. Morison. 4 M. & Sc. 607. S. C. See post. 112. note (c).] |