Page:Harvard Law Review Volume 9.djvu/72

44 HARVARD LAW REVIEW. Moygne recovered two judgments against Roger Bertelmeu as executor of William the goldsmith. In the first case he admitted the debt and set up matter in discharge. This was found against him except as to £60, as to which the finding was in his favor, and the judgment went against him personally for the residue. In the second case the claim was for 200 marks, of which the plaintiff's husband had endowed her ad ostium ecclesice. The de- fendant pleaded that the testator did not leave assets sufiicient to satisfy his creditors. The plaintiff replied that her claim was pre- ferred, which the defendant denied. The custom of boroughs was reported by four burgesses to be as the plaintiff alleged, and the plaintiff had a judgment against the defendant generally. The defendant complained of these judgments in Parliament, and as- signed as error that there came to his hands only £2^ at most, and that the two judgments amounted to £o and more. The matter was compromised at this stage, but enough appears for my purposes. If the defendant was right in his contention, it would follow in our time that the judgment should be de bonis testatoris, yet it does not seem to have occurred to him to make that sugges- tion. He assumed, as the court below assumed, that the judgment was to go against him personally. The limitation for which he contended was in the amount of the judgment, not in the fund against which it should be directed. There is some other evidence that at this time, and later, the judgment ran against the executor personally, and that the only limitation of liability expressed by it was in the amount. In the first case known to me in which executors were defeated on a plea oi plene administravit it was decided that the plaintiff should re- cover of the defendants *' without having regard to whether they had to the value of the demand." ^ Afterwards it was settled that in such cases the judgment for the debt should be of the goods of the deceased, and that the judgment for the damages should be general.2 But whether the first case was right in its day or not, the material point is the way in which the question is stated. The alternatives are not a judgment de bonis testatoris and a general judgment against the defendants, but a judgment against the de- fendants limited to the amount in their hands, and an unlimited judgment against them. 1 Y. B. 17 Ed. III. 66, pi. 83. 2 Y. B. II Hen. IV. 5, pi. 11. Skrene in 7 Hen. IV. 12, 13, pi. 8. Martin in 9 Hen. VI. 44, pi. 26. Danby in II Hen. VI. 7, 8, pi. 12. Dyer, 32 «, pi. 2. i Roll. Abr. 931, D. pi. 3. I Wms. Saund. 336, n. 10.