
    John Hill and Wife versus Joshua Davis and Eleazar Davis, Executors of the last Will of Benjamin Davis
    If two executors are named in a will, they knowing of their appointment, and the will is not presented to the Probate Court within thirty days from the death of the testator, an action for the forfeiture incurred by the statute of 1783, c. 24, § 16, may be sued against them jointly, or perhaps severally, although but one forfeiture can be recovered.
    But if the neglect be in one of the executors only, he alone incurs the forfeiture, and is alone to be sued.
    A man and his wife cannot recover in a popular action, sued in their joint names.
    Debt qui tam for not causing the will of the said Benjamin to be proved, or presenting the same to the judge of probate, with their refusal to accept the trust, within thirty days of the decease of the testator.
    The action was pending in Middlesex. The writ was served on Joshua Davis only, who pleaded that he did not owe the plaintiffs any thing in manner and form as they had declared; and this issue being joined by the plaintiffs, a trial was had at the sittings after the last October term in Cambridge, before the Chief Justice.
    
    *Upon the trial, the plaintiffs, to maintain the issue on [ * 138 ] their part, gave in evidence that the testator died about ten years ago ; that, after his funeral, the said Joshua produced a paper, which he said was the will of the said Benjamin; and the same was, at his request, read ; that in the said will a legacy was bequeathed.to the plaintiff’s wife,and to sundry other persons; and the said Joshua and Eleazar were appointed executors. No evidence was given that the said will had ever been presented for probate, or lodged with the judge of probate, by the executors, or either of them ; or that they, or either of them, had ever signified to the judge a refusal to accept the trust. And there was no evidence that the said Eleazar ever had any knowledge of the existence of the said will.
    The Chief Justice directed the jury that, upon this evidence, in this form of the action, they ought by law to find the issue for the defendants, because the plaintiffs had demanded a joint forfeiture of the said Joshua and Eleazar in an action of debt, and had not produced any evidence to show that the said Eleazar had incurred any part of the forfeiture demanded. The jury found a verdict accordingly for the defendants. The plaintiffs moved for a new trial on account of the judge’s direction, and the cause was continued nisi.
    
    And now, at this term, Ward, for the plaintiff,
    cited 1 Bac. Abr 
      
      Actions qui tam, D. “ Where several persons are jointly charged for an offence against a statute, which in its nature may be committed by a single person, without the concurrence of any other, some of them may be acquitted, and others found guilty.” And that this doctrine applies to actions of debt qui tam, as well as to informations, he argued from the cases of Worthy vs. Herpingham, 
       and Coffin vs. Carter, 
       in which it was ruled that not guilty is a good plea to an action of debt on a penal statute.
    As to the joining the plaintiff’s wife in the writ, Ward said he did not commence the action ; and if a new trial was granted, he should move for leave to strike her name out of the proceedings.
    * Bigelow, for the defendants,
    was stopped by the Court, whose opinion was afterwards delivered by
    
      
      
        Cro. Eliz. 766
    
    
      
       1 Term Rep. 462
    
   Parsons, C. J.

By the statute of 1783, c. 24, § 16, it is enacted that if any executor, or executors, of any will, knowing of their appointment, shall not, within thirty days after the testator’s decease, present the will to the Probate Court, every executor, so neglecting his or her trust in that behalf, (without just excuse made and accepted by the judge of probate for such delay,) shall, for his or her neglect, forfeit five pounds, for each month he or she shall delay to present the will, to be recovered by action of debt, one moiety to the plaintiff, and the other moiety to the legatees.

This action was brought by the plaintiffs to recover this forfeiture against the defendants named as executors in the will, for their joint neglect. The writ was served only on Joshua? who pleaded that he did not owe the plaintiffs in manner and form as they had declared, and issue on this plea was joined to the country. On tho trial, there was no evidence that Eleazar, one of the executors who was sued, ever had any knowledge that the will existed. And the jury were directed that, for this defect in the plaintiff’s evidence, he had failed to maintain the issue on his part. For this direction a new trial is moved for.

The object of the statute was to compel a seasonable presentation of the will to the Probate Court. If either executor presents the will, no forfeiture is incurred by the other ; if both neglect, a joint forfeiture is incurred by both, which may be sued for jointly ; and perhaps separately, although but one forfeiture can be recovered. But if the neglect be in one executor, and not in both, the negligent executor alone incurs the forfeiture, and is alone to be sued.

In this case, the plaintiffs might have demanded a several forfeiture from Joshua; but they have demanded, in an action of debt, a joint forfeiture of both the-executors; and the defendant, by pleading, denies that he owes a forfeiture jointly with the other; and upon this evidence it is very clear that the issue was with him, for the other executor had incurred no forfeiture.

*In informations, on penal statutes, for forfeitures in- [ * 140 ] curred by malfeasance, against several, charging them all with the malfeasance, on not guilty pleaded, the jury may convict some of the whole, or of part of the offence charged, and may acquit others. For the malfeasance in an information is several as well as joint, and each defendant incurs a forfeiture in proportion to his offence ; and in such information judgment may be rendered against the defendants as trespassers. But this action is ex contractu, in which a joint forfeiture is demanded as a joint debt.

We observe, here, that the plaintiffs are man and wife, in whose joint names a popular action has not been heretofore sued. The wife can have no interest in the judgment jointly with her husband in this case, nor is his interest therein in her right, but the effect of his own suit. If the verdict had been for the plaintiffs, no principle of law at present occurs to us on which they could have judgment.

The verdict is not set aside, but judgment must be entered ae cording to it. 
      
      
        Lane, 59.
     
      
       3 Black. Comm. 117.
     