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to the reversionary interest of the plaintiffs in some houses by the negligent manner in which the defendant pulled down a house of his own adjoining them. The plaintiffs were entitled to the property, which was leasehold, as executors of one J. S. To prove their title, they produced the probate of the will of J. S., which was granted to one of them, liberty being reserved to make the like grant to the two other executors named in the will. This was holdend sufficient per

Lord Tenterden, C. J.

3. Of joining several Causes in one Action by Executors. In order to join several causes in one action, the action must be brought as to all such causes in the same right (33). Hence, a plaintiff cannot join, in the same action, a demand, as executor or administrator, with another demand, which accrued in his own right. The reason is, because the funds, to which the money and costs, when recovered, are to be applied, or out of which the costs are to be paid, are different; and the damages and costs being entire, the plaintiff cannot distinguish how much he is to have in his representative character, and how much he is to hold as his own. Hence, it was holden in Rogers v. Cook, Salk. 10. that a count on an indebitatus assumpsit to A. as administrator, could not be joined with a count on an insimul computasset in his own name.

If executors take a note or bond from a debtor to the estate of their testator, the executors must declare on such note or bond in their own names, and not in their character as executors; and they cannot join a count on such a note or bond, with counts on causes of action accruing to them in right of testator. In Betts v. Mitchell, 10 Mod. 315, the plaintiff declared, upon several promises made to his testator, and also on a promissory note to himself as execulor; and it was insisted, that the last count could not be joined with the former counts, the words, “as executor,” being only a description of the plaintiff's person, whereas the note was made to him and transferable by his indorsement, and would go to his administrator, and not to the administrator de bonis non; and this reasoning was adopted by the court, who gave judgment for the defendant, on demurrer to the declaration. So where the plaintiffse, as executors, declared in the debet and detinet, on a bond given to their testator, and also on a bond given to themselves as executors, it was resolved, on special demurrer to the declaration, that the two causes of action could not be joined.

d Walters and others v. Pfeil, M. and

Malk, 362.

e Hosier and another v. Ld. Arundel,

3 Bos. and Pul. 7.

(33) By new rule H. T. 4 W. 4. several counts shall not be allowed, unless a distinct subject matter of complaint is intended to be established in respect of each.

VIII. Of Actions against Executors and Administrators.

1. What Actions may be maintained against Executors.Formerly an action wherein the testator might have waged his law could not be maintained against his executors or administrators. Hence, debt on a simple contract, as on a promissory note", would not lie against an executor or administrator.

But now wager of law is abolished“; and debtd on simple contract is maintainable in any court of common law against any executor or administrator. Assumpsit might always bave been brought. But assumpsit will not lie against an executorf for a legacy payable out of the general funds of the testator, although assets be averred in the declaration; for the law will not, from the mere circumstance of an executor's being possessed of assets imply a promise by him to pay such legacy. But an action may be maintained by the legatees of a specific chattel, against an executor, after his assent to the bequest. See Hart v. Minors, 2 Cr. & M. 700, where under the peculiar circumstances the action on account stated was holden to be maintainable against an executor, on the ground that he had debited himself.

The right to a distributive share of an intestate's property arises altogether out of the stat. 22 and 23 Car. 2. c. 10., and that gives it sub modo, the administrator is not to make distribution, until a year has elapsed from the intestate's death, and every person to whom distribution is allowed, must give bond conditioned to refund, if necessary, for the payment of creditors.

The suit for the share, therefore, must be in that court where the bond can be called for, and against the personal representative of the intestate. Hence, an action at law, cannot be maintained h for a distributive share of an intestate's property against the administrator, nor against his executor, although such executor may have expressly promised to pay. The neglect or refusal of the administrator to distribute the surplus or residue of the effects of the intestate among the next of kin, according to the statute of distribution without the previous decree or sentence of the court, is noti a breach of the condition of the administration bond.

a Bro. Exors. 80.

wood v. Rede, Plowd. 181. Carter b Barry v. Robinson, i Bos. and Pul. v. Fosset, Palm. 329. Pinchon's case N. R. 293.

9 Rep. 866. Cro. Jac. 662. Cottingc Stat. 3. and 4 W. 4. c. 42. s. 13.

ton v. Hulett, Cro. Eliz. 59, d s. 14.

f Deeks v. Strutt, 5 T. R. 690. e Palmer v. Lawson, 1 Lev. 201. Nor. g Doe v. Guy, 3 East, 120.

An acting executor having once receivedk, and fully had under his control, assets of the testator applicable to the payment of a debt, is responsible for the application thereof to that purpose; and such application having been disappointed by the misconduct of his co-executor, whom he employed to make the payment in question, he is liable for the consequences of such misconduct, as much as if the misapplication had been made by any other agent of a less accredited and inferior description (34). Where a sheriff levies money under a fi. fa. and dies, an action may be maintained against his executors for the money so received!.

Formerly, no remedy was provided by law for certain wrongs done by a person deceased in his lifetime to another, in respect of his property, real or personalm (35); but now, by stat. 3 and 4 W. 4. c. 42. s. 2. "an action of trespass, or trespass on the case, as the case may be, may be maintained against the executors or administrators of any person deceased, for any wrong committed by him in his lifetime to another, in respect of his property, real or personal, so as such injury shall have been committed within six calendar months before such person's death, and so as such action shall be brought

h Jones v. Tanner, 7 B. and C. 542.
i The Archbishop of Canterbury v.

Tappen, 8 B. and C. 151.

k Crosse v. Smith and another, 7 East,

246. 1 Perkinson v. Gilford, Cro. Car. 539. m Hambly v. Trott, Cowp. 371.

(34) By the old law, there was a distinction between executors and trustees. It was laid down as a general rule, that where executors joined in a receipt, both having the whole power over the fund, both were chargeable; where trustees joined, each not having the whole power, and the joining being necessary, only the person receiving the money was chargeable; but the rule as to executors has been in some degree relaxed. See the opinion of Eldon, C. in Chambers v. Minchin, 7 Ves. jun. 197, 8.

(35) See Serjeant Williams's note (1) to the case of Wheatley v. Lane, 1 Saund. 216.

within six calendar months after such executors or administrators shall have taken upon themselves the administration of the estate and effects of such person; and the damages to be recovered in such action shall be payable in like order of administration as the simple contract debts of such person.” The foregoing statute is confined in terms to injuries in respect of property, real or personal; the law, therefore, in respect of injuries to the person remains unaltered, as to which Serjeant Williams's note, above referred to, may be consulted with advantage.

By stat. 29 Car. 2. c. 3. s. 4. “No action shall be brought to charge any executor or administrator upon any special promise, to answer damages out of his own estate, unless the agreement upon which such action shall be brought, or some memorandum or note thereof shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized.” At the common law, an executor or administrator could not have been charged on any special promise to answer damages out of his own estate, unless such promise had been made on a sufficient consideration. The statute has not made any alteration in this respect. The promise, though in writing, still requires a sufficient consideration to support it". Ando the consideration as well as the promise must be expressed in the written memorandum or note.

2. What Causes of Action may be joined against Executors.—Several demands, some of which accrue from the defendant in his own right, and others in' right of another, ought not to be joined in the same action; because such demands require different pleas and different judgments. Hence, if a declaration against an executor or administrator contain counts which charge him in his representative character, and counts which charge him in his own right, such declaration will be bad, for misjoinder of cause of action, either on general demurrerp, or in arrest of judgment, or on writ of error. The four first counts in the declaration were on promises made by the intestate': the fifth stated, that after the death of the intestate, the defendant as administratrix, was indebted to the plaintiff for money, by the defendant, as such administratrix, had and received to the use of the plaintiff. On special demurrer, assigning for cause that the two causes of action, the one from the intestate and the other from the administratrix, could not be joined, the court were clearly of opinion that they could not; because the last count stated a cause of action after the intestate's death, which would exclude one of the pleas that might be pleaded to the other counts, and would warrant a different judgment. So, counts on promises by the testator cannot be joined with counts for money had and received by the defendant as executora, or for money lent to defendant as executor', or on an account stated of money due from defendant as executore. because the former charge the defendant in right of the testator, whereas the latter charge him in his own right. But where an action was brought against an administratrix4, and the three first counts of the declaration were on promises by the intestate, and the last was on an account stated between plaintiff and defendant, as administratrix, of money owing from the intestate, and in consideration of the intestate being found indebted, a promise by defendant, as administratrix, to pay, the court were of opinion that there was not any misjoinder of action, that the defendant was charged as administratrix in all the counts, and that this was the common mode of declaring, to save the statute of limitations. A promise made upon good consideration by a testator, that his executor

n Rann v. Hughes, 7 T R. 350. n.
o Wain v. Warlters, 5 East, 10. recog-

nized in Saunders v. Wakefield, 4
B. & A. 595. Clancy v. Piggott,
2 Ad. & Ell. 481. Hawes v. Arm-
strong, 1 Bingh. N. C.761.,

p Brigden v. Parks, 2 Bos. and Pul.

424. 9 Jennings v. Newman, 4 T. R. 347.

is a sufficient consideration for an action in assumpsit against the executore. And in such action, it is neither necessary to aver assets (the want of assets being matter of defence); nor a promise by the executor. On a count averring an account stated by the defendant of monies due from him as executor, the judgment shall be de bonis testatoris. It may, therefore, be joined with counts on promises of the testator. To a count in covenant, charging the defendants, as executors, for breaches of covenant by their testator as lesseeh, who had covenanted for himself, his executors, and assigns, may be joined another count, charging them, that after the testator's death, and their proving the will, and during the term, the demised premises came by assignment to one D. A., against whom breaches were alleged; and concluding, that so neither the testator, nor the defendants after his death, nor D. A. since the assignment to him, had kept the said covenant, but had broken the same.

shall pay,

a Brigden v. Parks, 2 Bos. and Pul. e Powell v. Graham, 7 Taunt. 580.

424. and Rose v. Bowler, 1 H. Bl. f s. C. per 3 Js., Burrough, J. dis108.

sentiente. bi H, BI. 108. c Ibid.

h Wilson v. Wigg, 10 East, 313. d Secar v. Atkinson, 1 H. Bj. 102.

I

g S. C.

VOL. 11.

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