
    *Bentley against Bentley, executor of Bentley.
    ALBANY,
    Oct. 1827.
    On the plea of ptene admimsm/vit and no assets <o be administered, the onus lies with the plaintiff; who is bound to show assets.
    Assumpsit, tried at the Onondaga circuit, the 2d of Oct0ber, 1826, before Throop, O. Judge.
    
      The declaration was upon a promissory note given by the testator to the plaintiff for 100 dollars; to which the defendant pleaded, first, non-assumpsit; and, secondly, that the plaintiff ought not, &c., because he says he has fully administered all the goods and chattels which were of the testator at the time of his death ; and that he has no goods or chattels which were of the testator at the time of his death in his hands to be administered, nor had, on the day of the exhibiting the bill of the plaintiff in this behalf, or at any time since, &c., to which the plaintiff replied, that the defendant, on the day of exhibiting the bill of the plaintiff, on this behalf, had divers goods and chattels which were of the testator at the time of his death, in the hands of the defendant, as executor, to be administered, of great value, to wit, of the value of the damages sustained by him, the plaintiff, by reason of the premises in the declaration mentioned; and wherewith the defendant, as executor, &c., could and might, and ought to have satisfied those damages, &c. Issue to the country.
    On the trial, the plaintiff proved the execution of the note by the testator, with the amount of interest, and rested.
    The defendant did not introduce any evidence; and his counsel contended that the judge ought to charge the jury to find their verdict for the defendant on the issue joined on the second plea, inasmuch as the plaintiff had not proved, or attempted to prove, that the defendant had any assets in his hands at the time of the commencement of this suit, or at any time before or subsequent. The plaintiff’s counsel contended that the affirmative of that issue was on the part of the defendant; and that he was bound to prove the truth of this plea; and the judge being *of that opinion, decided that the defendant, in order to avail himself of that plea, must prove that he had no assets in his hands at the time of the commencement of the suit; and charged the jury to find for the plaintiff. The defendant’s counsel excepted. The jury found their verdict generally for the plaintiff, and assessed his damages at 133 dollars and 45 cents.
    
      
      G. C. Bronson, for the defendant,
    now moved for a new trial. He said the plaintiff held the affirmative upon the issue, and was bound to show assets. The plea is in substance, merely negative ; “ no goods and chattels to be administered;” and the better plea is simply in that form, without the affirmative words, “ that he has fully administered.” (1 Stark. Ev. 377; 2 id. 554; 2 Phil. Ev. 295.) True, there is a dictum of Radcliff, J., in Platt v. Robins, (1 John. Cas. 276,) to the contrary : but it was out of the case, and the authority cited does not warrant his position. This court held, in Fowler v. Sharp, (15 John. 323,) that the words “fully administered,” in the plea oí plene administravit, are mere surplusage. That decision virtually settles this question; and the case is abundantly supported by the English authorities. (2 Sand. 221, note (3.) (2 Chit. Pl. 609.) Surplusage need not be proved. (3 Stark. Ev. 1534.) If the defendant succeed on the plea of plene administravit, it generally amounts to an absolute and final defence. (1 B. & A. 254.)
    
      J. A. Spencer, contra.
    It is not very material which way this question is decided; but we see no ground in principle or authority for overruling Platt v. Robins. As to the onus, there is no decision the other way. Fowler v. Sharp, in no respect interferes with the first case. It was upon a question of pleading, which arose on demurrer. Ho doubt the plea was good. It is the same thing whether a defendant say, “ I have administered all,” or “I have nothing to administer.” Phillips, who is cited against us, gives the case of a mere negative plea. He changes the burthen of proof according to the form of *pleading._ It is fit that this should be so; for, if the executor will say affirmatively, he has fully administered, he is but taken at his word. He has ample means to show the state of the assets. Strangers have not that power.
   Curia, per Sutherland, J.

The substantial part of the plea is, that the defendant had no goods or chattels of the testator, &c., at the time of the exhibiting of the plaintiff’s bill, or at any time since. The allegation that he had fully administered was wholly unnecessary, both in point of form and substance. This was expressly decided in Fowler v. Sharp, (15 John. 323,) where a plea precisely like the one in this case, (except the allegation that the defendant had fully administered was omitted,) was held good upon special demurrer, assigning that omission as one of the causes. Sergeant Williams, in 2 Saund. 221, note 3, says, “ The words, ‘ that they have fully administered,’ &c., seem to be superfluous; and the more formal and correct way of pleading appears to be, that they have no goods and chattels, &c., omitting the preceding words,1 that they had fully administered.’ ”

So, in Hewlet v. Framingham, (3 Lev. 28,) the court held a plea oí plene administravit merely, omitting the allegation that the defendant had no goods or chattels, &c., of the testator on the day of suing out the writ, or at any time afterwards, to be bad, on the ground that the allegation of plene administravit merely, related to the time of plea pleaded.

It is true that the form given by Chitty contains both branches of the plea. (2 Chitty’s Pl. 451.) But the replication given by him to the plea takes no notice of the first allegation. It takes issue on the fact of the defendant having goods and chattels, &c, to be administered, at the commencement of the suit. (2 Chitty, 609.) This fact shows, as is observed by Spencer, J., in Fowler v. Sharp, that the material part of the plea is the possession of assets at the commencement of the suit or afterwards.

The replication in this case is in that form; and the issue is to be considered the same as though the words, *“ that the defendant had fully administered,” had been omitted in the plea.

The affirmative allegation, therefore, is made by the plaintiff. The defendant says he had no goods and chattels, &c. The plaintiff replies that he had. The plea is negative, and the replication affirmative; and the-case seems to fall within the general rule of evidence, that the point in issue is to be proved by the party who asserts the affirmative; ei incumbit probaíio, qui didt, nbn qui negat; unless the circumstance that the facts necessary to maintain the issue, are peculiarly within the knowledge and cognizance of the defendant, makes it an exception. I am not aware that that circumstance has ever been held to exempt a party from the necessity of proving an affirmative allegation, though it frequently has that effect in relation to negative averments. Thus, in an action upon the game laws in England, though the plaintiff must aver, in order to bring the defendant within the act, that he was not duly qualified; yet he is not bound to disprove his qualifications ; but the defendant must prove himself qualified. (1 T. R. 144, 649; 6 T. R. 57; 1 Bos. & Pull. 468; 3 Bos. & Pull. 307; 1 East, 650.) The same rule applies to proceedings on informations before magistrates, as to actions for penalties; (1 East. 653;) and one of the reasons assigned for this rule is, that all the qualifications specified in the statute, are peculiarly within the knowledge of the qualified person.

So where a culpable omission or breach of duty is charged, the person who makes the charge is bound to prove it, though it may involve a negative; for every man is presumed to have acted legally, until the contrary is proved; (3 East, 199; 10 East, 216;) though the rule in relation to the game laws seems to be inconsistent with this position. (Vid. The opinion of Story, J., in 2 Grall 499, 500.) Mr. Phillips, in the 2d vol. of his treatise, page 296, says the onus probandi, upon an issue like this, is upon the plaintiff, who ought to prove assets in the possession of the defendant, either before or at the time alleged ; and Starkie ^maintains the same position. (1 Starkie’s Ev. 377; 2 id, 554.)

In Platt v. Robins & Swartwout, (1 John. Cas. 276,) it was held that upon plene administravit, the burthen of proof lay upon the defendant. But what the particular form of the plea or the replication was, does not appear. That case, however, was decided long before Fowler v. Sharp, in which it was, for the first time in this court, established that the allegation, that the defendant had fully administered, was mere surplusage in the plea.

After that decision, I do not see any principle upon which the defendant can be bound to prove the negative allegation, that he had no goods and chattels, &c.

New trial granted.  