the testator; or an action on the case against the sheriff for a false return made in the life of the testator to a fi. fa. viz. that he had levied only so much, part whereof he had sold, and part remained in his hands for want of purchasers; or an action of debt on a judgment against an executor, suggesting a devastavit in the life-time of plaintiff's testator. In like manner, it has been holden, that an administrator may maintain an action against the bailiff of a liberty for executing a fi. fa. and removing the goods off the premises, before the landlord (the intestate) was paid a year's rent, pursuant to the stat. 8 Ann. c. 17'. But an executor shall not have trespass de clauso fracto; for moritur cum personâ illa actio, By stat. 11 Geo. 2. c. 19. s. 15. "Executor or administra"tor of tenant for life, on whose death any lease of lands, "&c. determined, shall in an action on the case, recover, " from the under-tenant, a proportion of the rent reserved, "according to the time such tenant for life lived of the last year, or quarter of a year, or other time in which the said "rent was growing due," 66 By the common law, an executor or administrator could not have an action of account; because it was founded on a matter in the privity of the testator; but now, by stat. 13 Edw. 1. c. 23., "An executor shall have an action of account 66 upon an account with his testator." 66 By 25 Edw. 3. stat. 5. c. 5. " Executors of executors shall "have actions of debts, accounts, and of goods carried away of the first testators, in the same manner as the first "testator should have had." 66 Administrators derive their authority to bring actions from the stat. 31 Edw. 3. c. 11. which provides, that "where a "man dies intestate, the ordinary shall depute the next and "most loyal friends (34) to administer his goods, which deputies may bring actions to demand and recover, as executors, the debts due to the intestate." c Moreton's case, 1 Ventr. 30. f Palgrave v. Windham, Str. 212. (34) A subsequent statute, 21 H. 8. c. 5. s. 3., in case of intestacy or executors refusing to prove, directs the ordinary to grant administration to the widow or next of kin; and where two or more stand in equal degree, to accept which he pleases. An administrator cannot have an action for a breach of promise of marriage to the intestate, where no special damage is alleged'. 2. Executors and Administrators must join in bringing Actions. It is a general rule, that, if there are two or more executors, and one proves the will, they must all join in bringing actions; and if they do not, the defendant may plead in abatement, that there are other executors living not named*. In this plea it is not necessary to aver, that the executors not named have administered'; because they may administer at their pleasure. So where there are two or more administrators, it is necessary that they should join in bringing actions". And this rule, viz. that all the executors shall join, holds even where some of them refuse before the ordinary"; because the refusing executors may come in at any time, and administer, notwithstanding their refusal, either during the lives of their co-executors who have proved, or after their death P. The like law is, where some of the executors are infants; they must all join, and they may all appear by attorney; for those of full age may appoint an attorney for those within age. So where there are two executors, one of full age, and the other within age; and the executor of full age is appointed administrator, durante minori ætate of the other executor. A. made B. and C., who was an infant under seventeen, executors; B. only proved the will and brought debt as executor against defendant (omitting C.) Plea in abatement, that C. was made an executor with B., and is yet in full life, not named', &c. Replication, that C. was of the age of one year, that B. proved the will, and had administration committed durante minori ætate, and that C. is still under seven years of age. On demurrer, judgment for defendant; for, although by the administration committed durante minori ætate B. hath the full power, yet C. the infant, being executor, ought to be named. 3. Of joining several Causes in one Action by Executors i Chamberlain v. Williamson, 2 M. & S. 408. o Bro. Exors. 117. Fitz. Abr. Exors. 26. k Reg. 140. b. Bro. Exors. pl. 69. Fitz. p 21 Edw. 4. 23. b. 24. a. recognised Abr. Exors. pl. 48. 1 41 E. 3. 22. a. in Reg. 140. b. n Hensloe's case, 9 Rep. 36. b. by Holt, C.J. iu Wankford v. Wankford, Salk. 307. q Foxwist v. Tremain, 2 Saund. 212. r Smith v. Smith, Yelv. 130. 1 Brownl. 101. S. C. (35). In order to join several causes in one action, the action must be brought as to all such causes in the same right (36). 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. It is frequently difficult to decide what causes of action an executor may join when suing in his representative character. In King v. Thom, 1 T. R. 489. Buller, J. (adopting the rule laid down in Bull v. Palmer, 2 Lev. 165. and Mason v. Jackson, 3 Lev. 60.) thought that the solution of this question depended on this, viz. Whether the sum or goods, when recovered, would be considered as assets of the testator; if they would, then the plaintiff might sue in his representative character. In Cockerill v. Kynaston, 4 T. R. 281. the same learned judge expressed the same opinion; which was adopted by Lawrence and Le Blanc, Js. in Ord v. Fenwick, 3 East, 110.; and in Cowell v. Watts, 6 East, 405. the court of K. B. agreed, that where the sum recovered, and costs, must be applied to the estate of the testator or intestate, the counts might be joined; and that those cases, in which the rule had been laid down, that counts might be joined, wherever the money recovered under them would be assets, afforded the best guide to the court in the solution of questions of this kind. Upon this principle it was holden', that a count, upon a promise to the plaintiff as administratrix, for goods sold and delivered by her after the death of the intestate, might be joined with a count, upon an account stated with her, as administratrix, of money owing from the s Cowell v. Watts, 6 East, 405. (35) The cases on this subject are somewhat perplexed." Ld. Ellenborough, C. J. 3 East, 110. (36) In Petrie v. Hannay, 3 T. R. 659. Buller, J. said, that it was the constant practice to join in the same declaration a count for money had and received to the use of the executor as such, and 2 count for money had and received to the use of the testator. defendant to the plaintiff as administratrix, and a promise to pay her as administratrix. In Ord v. Fenwick, 3 East, 104. on writ of error after verdict and judgment in C. B. it was resolved, that a count for money paid by the plaintiff as executrix might be joined with a count for money paid by the testator; because it did not appear but that the executrix might have been compelled to pay the money upon an obligation by the testator as surety for the defendant, to repay which the law would raise an implied promise by the defendant to the plaintiff as executrix (37). It must be observed, that 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 note or bond, with counts on causes of action accruing to them in right of testator (38). 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 executor; 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 transferrable by his endorsement, 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 plaintiffs', 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. t Hosier and another v. Ld. Arundel, 3 Bos. & Pul. 7. (37) In Henshall v. Roberts and another, 5 East, 154. Lord Ellenborough, C. J. seems to have been of opinion, that a count on a promise to plaintiff, as executor, on an account stated with plaintiff, as executor, concerning money due to plaintiff, as executor, could not be joined with other counts on promises made to the testator. (38) But in King v. Thom, 1 T. R. 487., it was holden by Ashhurst and Buller, Js. that a count against the defendant as acceptor of a bill of exchange, endorsed by the payee to the plaintiffs, surviving executors of J. S. in right of the plaintiffs as surviving executors, might be joined with counts for money had and received by defendant to the use of plaintiffs as executors, and on an account stated with plaintiffs as executors. VIII. Of Actions against Executors and Administrators. 1. What Actions may be maintained against Executors.IT is a general rule, that an action, wherein the testator might have waged his law (39), cannot be maintained against his executors or administrators". Hence, debt on a simple contract, as on a promissory note, will not lie against an executor or administrator. So debt does not lie against an executor or administrator upon an award made in the life-time of the testator or intestate, if the executor or administrator demurs to the declaration. But if the defendant pleads in bar to the action, and a verdict is found against him, he cannot take advantage of it afterwards, either in arrest of judgment or by writ of error. No inconvenience results from this rule of law, since the debt may be recovered in an action of assumpsit, which will lie against an executor or administrator, notwithstanding it is in form an action of trespass on the case. Neither does the maxim, actio personalis moritur cum personâ, afford any objection to the bringing this action; for an action upon a promise upon a good consideration, without specialty, to do a thing, is not more annexed to the person than a covenant by specialty to do the same thing. This point was solemnly determined in Norwood v. Rede, Plowd. 181., and Pinchon's case, 9 Rep. 86. b., where actions of assumpsit were brought against executors for the non-payment of money due from their testators. And in Carter v. Fosset, Palm. 329. and Cro. Jac. 662. it was resolved, on error, in the Exchequer Chamber, that assumpsit would lie against an executor for the breach of a collateral promise made by testator. The declarations in Norwood v. Rede, and Pinchon's case, contained averments, that the defendants, the executors, had assets to pay the debts of the testator; but in Cottington v. Hulett, Cro. Eliz. 59., this was holden unnecessary, on the ground, that want of assets was matter of defence. Assumpsit will not lie against an executor for a legacy u Bro. Exors. 80. x Barry v. Robinson, 1 Bos. & Pul. N. R. 293. y Hampton v. Boyer, Cro. Eliz. 557. z Bowyer v. Garland, Cro. Eliz. 600. a Plowd. 182. a. b Palmer v. Lawson, 1 Lev. 201. c Deeks v. Strutt, 5 T. R. 690. (39) Wager of law, though it has fallen into disuse, is not abolished. See 1 Bos. & Pul. N. R. 297. |