Page:Harvard Law Review Volume 4.djvu/124

I08 HARVARD LAW REVIEW, true and valid, the action will be wholly defeated ; if it turn out to be untrue or invalid, it will go for nothing, and the plaintiff, unless his declaration be bad in law, will recover his entire demand. An affirmative defence, therefore, can never succeed in part and fail in part; unless it is wholly successful, it must wholly fail, and hence, if such a defence consist of several facts, every one of those facts must be true, or the entire defence will fail. It follows, there- fore, that an affirmative defence must be so framed that the plaintiff can traverse it, and must consist of such matter that, if the plaintiff does traverse it, or any fact of which it consists, an issue may be joined, upon the decision of which the entire action will depend. The question now under consideration, namely, whether an ex- ecutor has in his hands sufficient assets to pay a creditor of his testator, will serve to illustrate some of the differences between an accounting and a defence. The object of an accounting by an executor, at the suit of a creditor of his testator, is to ascertain how much assets the executor has in his hands ; and it is always the creditor who wishes to accomplish this object, and in order to accomplish it he must bring the proper action, or must properly frame his action. Moreover, as an action of account would not lie in such a case, there never was an action at law by which this object could be accomplished. On the other hand, the object of a de- fence of want of assets, to an action against an executor by a creditor of his testator, is to defeat the action, and, of course, it is always the executor who wishes to accomplish that object. But the only way of making want of assets a defence to such an action, and thus defeating the action, is by showing that the executor has no assets, or that he has none which are applicable to the payment of the plaintiff's debt, or that he has only a stated amount of assets, being an amount insufficient to pay the plaintiff's debt. If, then, the executor plead that he has no assets, and the creditor traverse the plea, and issue be joined upon the traverse, the question at the trial will be, not how much assets the executor has, nor whether he has enough to pay the plaintiff's debt, but whether he has any. If this question be decided in the negative, the plaintiff will fail in his action.^ If it be decided in the affirm- ative, the plaintiff will have a verdict and judgment for his whole demand.2 And it may be remarked that this result has at least one merit; namely, that it makes it very perilous 1 I Rol. Abr.929 (B), pi. 2. 2 I Rol. Abr. 929 (B), pi. i.