#### Clark v. Blount, and Wiggins’s Executors.

i I From Washington, J

In an action of debt against an executor, several pleas were pleaded, and among others a want of assets; and the plaintiff supported all the other issues by proof, but called no one to prove that defendant had assets: defendant made no objection for want Of such proof, and the case went to the jury, who returned a verdict for the plaintiff on all the issues; defendant moved for a new trial, because assets had not been shown, and the court offered him a new trial of that issue alone, which he declined: — held that having refused the oppor. ' tunity offered of redress in the only point on which he had a right to complain, he had no cause of appeal to this court.

Defendants were in court on the argument of the ruie for a new trial,' and though called on to support the ground taken (a want of assets) by affidavit, declined to do so: held that they were not entitled to a new trial.

This was an action of debt, on an obligation under seal, to which the defendant pleaded payment, set off", fully administered, the acts of 1715 and 1789 in favour of *209 executors, debts of higher dignity, no assets ultra, and retainer. When the suit was called, and the jury charged, the defendant’s attorney mentioned to the court that he expected a witness to support the plea of the act of 1715, barring actions against executors if not brought within seven years; but that as the witness had not been summoned, he was not prepared with the proof. The plaintiff’s counsel read the obligation, and offered no other evidence. There was no argument on either side, and no charge from the judge. The jury took the case, without any objection on the part of the defendant, retired, and returned a verdict for the plaintiff on all the issues made in the record. The defendant then moved for a rule to show cause why a new trial should not be granted, because there was no evidence offered by the plaintiff that the executor had assets to satisfy the plaintiff’s debt. There was no affidavit by the executor to show a want of assets, though he was in court, and the want of such affidavit was objected by plaintiff’s attorney. After argument the rule was made absolute, on condition that the defendant would waive the plea of the act of 1715, and rely on his other pleas. The defendant refused to accept a new tidal on this condition, and there was judgment for the plaintiff, and an appeal.

Hogg, for the plaintiff, on the doctrine of new trials, referred to 2 Term R. 113. Ibid, 4. 5 Burr. 2631. Jones v. Zollicoffer, (2 Hawks 492.) Wagstaff v. Smith, (2 Hawks 45.)

Hall, Judge

I do not think that the justice of this case requires that a new trial should be granted. If the defendant has no assets subject to the plaintiff’s demand, it would be an easy thing for him to set it forth in an affidavit. As he will not do this, we may take it for granted that, although the jury found for the plaintiff without evidence, they did not find against the truth of the case. The object of the defendant seems to be, to *210defeat the plaintiff’s claim, not upon the merits, hut by the statute of limitation. Under these circumstances, as the plaintiff has a verdict, I am not disposed to deprive hjm 0f i think the rule for a new trial should be discharged.

Henderson, Judge.

The defendant pleaded fully administered, and some affirmative pleas. On his affirmative pleas he offered no evidence, and on them the jury found against him. Of this he cannot complain, for he offered no evidence to support the truth of them. But as to his negative plea of fully administered, -he had a right to complain; for the jury found against him also upon that plea, without evidence, for the proof of assets is by law thrown upon the plaintiff. Anomalous as it may be, the bar must be negatived by the plaintiff, and need not be supported by the defendant; but the principle is right, for assets liable to the plaintiff’s recovery is the main pillar of the plaintiff’s right of action. More properly, therefore, it forms part of his case, if principle alone were consulted. But the uniform practice, from the earliest times, is to omit to state it in the claim or declaration; and the practice of only requiring that the defendant vshould intimate the want of assets as sufficient for him, and then that the proof should be thrown on the plaintiff, reconciles the case to principle, in substance and effect. The mode, therefore, is anomalous, to wit, that the disproof of a defendant’s plea should be thrown on the plaintiff. And it must have been on this ground that Lord Mansfield went, when he, to his credit, overruled former decisions, and declared that an executor was liable only to the extent of his assets, although he had fully administered and failed to disclose the true state of the assets. The plea was therefore false in part; and if considered strictly as a plea, it was the same as if found false in toto. Upon which grounds, prior decisions held the exeGutov liable for the whole debt. But if it is con*211sidered that assets in the hands of the defendant is a part of the plaintiff^ case, then the defendant is liable so far only as the plaintiff charges him with assets. The want of assets is not, therefore, strictly speaking, a plea interposed by the defendant, hut rather as a negation of the plaintiff’s demand; it is a mere intimation, or, more properly, a protestation of the want of assets; which,- without such intimation or protestation, would be presumed against-him. Of the finding of the jury on this issue, therefore, I say th at he had a right to complain. And the court very properly, "in that state of the business, offered him a new tidal on that issue. This he declined to accept. On what principle, therefore, can his appeal to this court be sustained? It is quite evideiit.that he wishes more than a bare correction of the error. But in addition to this, although the defendants were in court, they refused to make affidavit of the want of assets, when challenged to do it by the plaintiff. This, .alone, sustains the judgment below. See the case of Wagstaffe v. Smith, (2 Hawks Rep. 45.) Let the rule for a newtrial be discharged, and judgment affirmed.

The Ciiiep Justice concurred.