husband could not arise till after her death in his lifetime; and that the case, therefore, did not fall within the principle of the rule as to chattels personal, but within that as to chattels real; and according to the latter rule (q), as the property did not vest in the husband, the joint-tenancy was not severed by the marriage, but continued till the death of his wife; and then the elder title of the other joint-tenants by survivorship prevailed (r). (g) See ante, p. 616, note (p). (r) In the Trusts of Barton's Will, 10 Hare, 12. CHAPTER THE SECOND. TO WHAT CHOSES IN ACTION THE EXECUTOR OR ADMINISTRA- IT T is now proposed to consider in what cases an executor or administrator may sue, where the cause of action accrues after the decease of the testator or intestate. Upon the death of the testator or intestate, if any injury is afterwards done to his goods and chattels, the executor or administrator may bring an action for damages for the tort: And under such circumstances, he has his option, either to sue in his representative capacity, and declare as executor or administrator, or to bring the action in his own name, and in his individual character. This right of action, and option as to the form in which it shall be brought, exist in the executor or administrator, whether he had ever had actual possession of the property or not. Mr. Justice Buller, indeed, in Cockerill v. Kynaston (a), laid down, that if the goods, which were the subject of the action, were never in the actual possession of the executor or administrator, it is absolutely necessary for him to declare in that character: But that opinion has been since frequently overruled (b): For it is a rule of law, that the property of personal chattels draws to it the possession, so that the owner may bring either trespass or trover at his election against any stranger who takes them away (c): Now on the death of the testator or intestate, his executors (a) 4 T. R. 281. (b) Bollard v. Spencer, 7 T. R. 358. Hollis v. Smith, 10 East, 294. Grimstead v. Shirley, 2 Taunt. 117. (c) Bro. Trespass, 303. Hudson v. Hudson, Latch. 214. or administrators are, in point of law, the owners of the goods which belonged to him; and consequently whether in actual possession of them, or not, before the tort committed, they may declare, as any other person may, upon their own property, when wrongfully damaged by another (d). Therefore executors or administrators may maintain trespass for taking away the goods of the testator or intestate after his death, either in their own name, or in their representative character, whether they were ever actually possessed of them or not (e). And if they sue as executors or administrators, they may either declare that the deceased was possessed of the goods and the trespass committed after his death to the damage of the executors or administrators (ƒ); or as the property in the goods draws to it the possession in law, they may declare on their own possession as executors (g). So with respect to the action of trover, if the goods of the testator are taken and converted after his death, and before the executor has obtained possession of them, he may either bring an action in his own name, without alleging himself executor (h), or he may sue as executor, and declare either that the testator was possessed of the goods and the defendant after his death converted them (i), or he may allege that he himself was possessed as executor, and the defendant converted them (k). (d) Hollis v. Smith, 10 East, 295. (e) Adams v. Cheverel, Cro. Jac. 113. (f) Cro. Jac. 113. (g) 2 Saund. 47, n. note to Wilbraham v. Snow. (h) Hole v. King, Com. Rep.163. Jenkins v. Plombe, 6 Mod. 181. (i) Hudson v. Hudson, Latch. 214. (k) Anon. Comberb. 451. 2 Saund. 47, n. note to Wilbraham v. Snow. Thus, in Fraser v. The Swansea Canal Company, 1 Adol. & Ell. 354. S. C. 3 Nev. & M. 391, the VOL. I. mortgagee of the lease of a colliery, together with the machinery and barges belonging thereto, died before the day of redemption: After his death, the mortgagor, who had remained in possession, made default in the payment of the mortgage debt, but was not dispossessed by the administrator of the mortgagee: The mortgagor subsequently demised the mortgaged property to a third party, who took possession under such demise, and put his name on the barges: During such possession, the barges, together with a quantity of coal, 3 E Actions on contracts executor. It has already appeared that an executor or administrator may maintain these actions, although the injury was done before probate or administration granted (1). An executor, as such, may maintain quare impedit, for a disturbance in his own time (m), or ejectment, where the testator had a lease for years, or from year to year, upon an ouster after his death (n). So an executor, as such, may bring an action against the Sheriff for the escape of one in execution on a judgment recovered by him as executor; though he may also sue in his own name (0). So with respect to matters of contract, it has been decided, made with the in a variety of modern cases, that an executor or administrator may sue as such, as well as in his own name, upon a contract made with him in his representative character: And this he may do, not only in cases where the consideration flows from the deceased, but also in cases where the consideration flows directly from himself as executor. Thus an executor may declare, as such, in assumpsit, not only on an account stated with him as executor, concerning money due to the testator from the defendant, but also on an account -stated with him as executor, concerning money due to him as executor (p). Again, an executor may maintain an action, the produce of the colliery, were (1) Ante, p. 557. (m) Smalwood v. Bishop of Coventry, Cro. Eliz. 207. S. C. Savil. 94, 118. Owen, 99. 1 Lutw. 1. 1 And. 244. (n) Slade's case, 4 Co. 95, a. Moreton's case, 1 Ventr. 30. Doe v. Porter, 3 T. R. 13. (0) Bonafous v. Walker, 2 T. R. 126, overruling Watt v. Briggs, 1 Lord Raym. 35, and several old authorities in which the necessity of suing as executor had been maintained: amongst others, Hitchcock's case, cited in Hargrave's case, 5 Co. 31, b. Glover v. Kendal, 1 Lutw. 893. Brooks v. Cooke, 1 Show. 57. Carew v. Broughton, Lane, 79. Townley v. Steele, Hutt. 79. Martin v. Henley, Sty. 232. But Crawford v. Whittal, Dougl. 4, n. (1), agrees with Bonafous v. Walker, which on principle appears unquestionably well decided. (p) Needham v. Croke, 1 Freem. as such, for money lent by him as executor (q). So where money belonging to the estate of the testator is received after his death, the executor may declare, on the implied assumpsit, for money had and received to his use as executor (r). So in Ord v. Fenwick (s), it was held that an administratrix, as such, may maintain assumpsit, for money paid by her as administratrix to the use of the defendant: And Lord Ellenborough laid down, that if an executor is sued on the obligation of the testator, who had become surety for a joint obligor, and is thus compelled to pay, an action will lie by the executor, as such, to recover the money so paid (t). So in Clarke v. Hougham (u), it was held, that where an administrator, in his representative character, has paid that which he ought not, he may in the same character recover it back again. Again, in Cowell v. Watts (x), it was decided that an action may be maintained by an administratrix, as such, for goods sold and delivered by her as administratrix after the death of the intestate. So in the case of Marshall v. Broadhurst (y), where the testator had agreed to do certain work, and died before the work was begun, and the executors did the work, using the materials of the testator, and then brought an action, declaring in their representative character for work and labour done, materials found, and goods sold and delivered by the plaintiffs as executors; it was holden by the Court of Exchequer, that they might recover the value of the materials; and the Court seemed to be further of opinion, that they might recover also for the work and labour as executors. And in Edwards v. Grace (2), it was afterwards expressly decided in the same Court, that an executor might sue, as such, for 538. Thompson v. Stent, 1 Taunt. 322. Cowell v. Watts, 6 East, 405. (q) Webster v. Spencer, 3 B. & A. 365. Gallant v. Bouteflower, 3 Dougl. 34. (r) Foxwist v. Tremaine, 2 Saund. 208. Petrie v. Hannay, T. R. 659. Smith v. Barrow, 2 T. R. 477. by Ashurst, J., Web- (t) 3 East, 105, 106. (x) 6 East, 405. (y) 1 Cromp. & Jerv. 403. S. C. 1 Tyrwh. 308. (*) 2 Mees. & W. 190. |