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with A. both on their own account and as agents for the other executor, or generally on account of the estate, with a view to the interference of the other executor, if he chose to take part in the management of it (r). So if one of several executors sell the goods of the testator, he may sue alone for the price, not suing as executor (s). And two out of three executors may recover in ejectment on a joint demise, the third not having proved (t).

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 (u). 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.

After much discussion, it is now finally settled, that in all actions by executors or administrators, if the money recovered on each of the counts will be assets, the counts may be joined in the same declaration (x). Thus, for instance, a count for work by the plaintiff as administrator, may be joined with counts for goods sold and work done by the intestate (y). So also counts on promises made to an intestate may be joined with counts on promissory notes, given to the administrator as administrator, since the death of the intestate (z). The counts so joined to counts on promises to the testator should state, that the duty accrued to the plaintiff in his representative character "as executor" (a). In Lancefield v. Allen, 1 Bligh, N. S. 592, however, in a declaration by executors, a count stating that the defendant had accounted with the plaintiffs, "executors as aforesaid," was joined with counts stating promises to the testator: after verdict and judgment for plaintiffs, a writ of error was brought upon the ground of misjoinder, but the judgment was affirmed.

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 (b).

(r) Heath v. Chilton, 12 M. & W. 632.
(s) Brassington v. Ault, 2 Bingh. 177.
(t) Doe v. Wheeler, 15 M. & W. 623.
(u) Com. Law Proc. Act, 1852, s. 41.
(x) 2 Wms. Saund. 117 g. (m) (6th ed.).

(y) Edwards v. Grace, 2 M. & W. 190. (2) Partridge v. Court, 5 Price, 412; (in error) 7 Price, 591.

(a) 2 Wms. Saund. 117, h. (6th edit.) (b) Bro. Exors. 80.

Hence, debt on a simple contract, as on a promissory_note (c), would not lie against an executor or administrator. But now wager of law is abolished (d); and debt on simple contract is maintainable in any court of common law against any executor or administrator (e). Assumpsit might always have been brought (ƒ). By 4 Ann. c. 16, s. 27 (g), an action of account is given against the executors and administrators of guardians, bailiffs, and receivers, and also by one joint-tenant and tenant in common, his executors, and administrators, against the other, as bailiff, for receiving more than his share, and against the executor and administrator of such joint-tenant or tenant in common.

Assumpsit will not lie against an executor 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 (h). But an action may be maintained by the legatee of a specific chattel, against an executor, after his assent to the bequest (i). So an action at law cannot be maintained 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 (k). But where an executor has stated an account with a legatee, and debited himself absolutely with a certain sum as retained in his hands for such legatee, he ceases to hold the money in his character of executor, and an action on an account stated will lie against him (7). "It is quite clear that, so long as no other relation exists between two parties than that of trustee and cestui que trust, no action can be maintained by the latter against the former, for any money in his hands. The trustee is in such a case the only person entitled at law to the money, and the remedy of the cestui que trust is exclusively in a court of equity. When indeed there is no trust to execute, except that of paying over money to the cestui que trust, the trustee by his conduct, as, for instance, by admission that he has money to be paid over, or by settling accounts on that footing, may, and often does, make himself liable to an action at law at the suit of the cestui que trust, for money had and received, or for money due on an account stated" (m).

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 Distributions, without the previous

(c) Barry v. Robinson, 1 N. R. 293.
(d) 3 & 4 Will. IV. c. 42, s. 13.
(e) Ibid. s. 14.

(f) Palmer v. Lawson, 1 Lev. 201; Norwood v. Read, Plowd. 181; Carter v. Fossett, Palm. 329; Pinchon's case, 9 Rep. 86, b.; Fawcett v. Charter, Cro. Jac. 662. (g) See ante, pp. 2, 3.

(h) Deeks v. Strutt, 5 T. R. 690. (i) Doe v. Guy, 3 East, 120. (k) Jones v. Tanner, 7 B. & C. 542. (1) Hart v. Minors, 2 Cr. & M. 700; Bond v. Nurse, 10 Q. B. 244.

(m) Per Rolfe, B., Pardoe v. Price, 16 M. & W. 451.

decree or sentence of the court, is not a breach of the condition of the administration bond (n).

An acting executor having once received, 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 at law 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 (o). If one co-executor lends the testator's money which has come to his hands, and which the testator had directed to be laid out on good security, to the other executor on his bond, it is a devastavit (p).

Formerly, no remedy was provided by law for wrongs done by a person deceased in his lifetime to another, in respect of his property, real or personal (q); but by 3 & 4 Will. IV. 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 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." An intestate was lessee of some coal mines of the plaintiffs', and had worked the coal under a portion of land excepted from the demise; part of such coal was raised more than six months before the intestate's death, and part within six months; it was held, that the plaintiffs might bring trespass under the statute for so much as was raised within the six months, and also money had and received for so much as was raised before, the acts being distinct, and, therefore, the two actions not incompatible (r). The foregoing statute is confined in terms to injuries in respect of property, real or personal; the law, therefore, in

(n) The Archbishop of Canterbury v. Tappen, 8 B. & C. 151.

(0) Crosse v. Smith, 7 East, 246. 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 per Lord Eldon, Ch.,
in Chambers v. Minchin, 7 Ves. 197. In
Walker v. Symonds, 3 Swans. 64, the same
learned judge said, "It may be laid down
now, as in Brice v. Stokes (11 Ves. 319),
that though one executor has joined in a
receipt, yet whether he is liable shall de-
pend on his acting." Terrell v. Matthews,
i Mc. & G. 433, acc.

(p) Gleedon v. Atkin, 2 Tyrw. 598.
(q) Hambly v. Trott, Cowp. 371.
(r) Powell v. Rees, 7 A. & E. 426.

respect of injuries to the person remains unaltered, as to which see note (1) to Wheatley v. Lane, 1 Wms. Saund. 216, a.

By 29 Car. II. 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 (s), e. g. the possession of assets (t). And the consideration as well as the promise must be expressed in the written memorandum or note. See post, tit. "Statute of Frauds."

The provisional assignee of the Insolvent Debtors' Court (under 1 Geo. IV. c. 119, s. 7 (u)) assigned the estate of an insolvent to an assignee, who assented to such assignment, and acted under it as tenant of premises, which the insolvent held as lessee for years : it was held, that the executor of such last-mentioned assignee was liable to the lessor for breaches of covenants in the lease, subsequent to his testator's death; it not appearing that the Insolvent Debtors' Court had appointed fresh assignees (x).

By 30 Car. II. c. 7, s. 2, (made perpetual by 4 & 5 W. & M. c. 24, s. 12,)-The executors and administrators of executors of their own wrong, or administrators who have wasted and converted the assets of the deceased to their own use, shall be chargeable in the same manner as their testator or intestate would have been if living. A doubt having arisen upon the preceding clause, whether it extended to the executors and administrators of any executor or administrator of right, who, from want of privity, were not before answerable for the debts due from the first testator or intestate, although such executor or administrator of right had been guilty of a devastavit or conversion, it was enacted, by 4 & 5 W. & M. c. 24, s. 12,-that the executor and administrator of such executor or administrator of right, who shall waste or convert to his own use the estate of his testator or intestate, shall be chargeable in the same manner as his testator or intestate would have been.

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, cannot be joined in the

(s) Rann v. Hughes, 7 T. R. 350, n.
(t) Pearson v. Henry, 5 T. R. 6.
(u) The present Insolvent Act is the

1 & 2 Vict. c. 110.

(x) Abercrombie v. Hickman, 8 A. & E. 683.

same action; because such demands require different pleas and different judgments (y). Hence, if a declaration against an executor or administrator contain counts which charge him in his representative character, and also counts which charge him in his own right, such declaration will be bad, for misjoinder of cause of action, either on demurrer, or in arrest of judgment, or on error (z). So counts on promises by the testator cannot be joined with counts for money had and received by the defendant as executor (a); or for money lent to the defendant as executor (b); or for interest for the forbearance by the plaintiff to the defendant as executor, at his request, of money owing from the defendant as executor to the plaintiff (c); 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 administratrix, and the three first counts of the declaration were on promises by the intestate, and the last was on an account stated between the plaintiff and defendant, as administratrix, of money owing from the intestate, with a promise by the defendant, as administratrix, to pay, the court were of opinion, that there was not any misjoinder of action, for that the defendant was charged as administratrix in all the counts (d). So where, to a count for money had and received by the defendant as executor was joined a count on an account stated, of money due from the defendant as executor, it was held, that there was a misjoinder (e); for on the first count the judgment would be de bonis propriis, but on a count averring an account stated by the defendant of monies due from him as executor, the judgment shall be de bonis testatoris. This count may, therefore, be joined with counts on promises of the testator (f). So counts for goods sold to, and work and labour done for, the defendant, as executor, cannot be joined with a count for money found to be due on an account stated with the defendant as executor; for the two first counts are necessarily for debts due from the defendant in his own right, and charge the defendant personally, whereas the last count charges the defendant in his representative character (g). But a count for money, paid to the use of the defendant as executor, may be joined with counts on promises by the testator (h).

A promise made upon good consideration by a testator, that his executor shall pay, is a sufficient consideration for an action of assumpsit against the executor. 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 (i). To a count in covenant charging the defendants, as executors, for breaches of covenant by

(y) Jennings v. Newman, 4 T. R. 347. (z) Brigden v. Parks, 2 B. & P. 424. See Com. Law Proc. Act, 1852, s. 41. (a) Brigden v. Parks, supra. (b) Rose v. Bowler, 1 H. Bl. 108. (c) Bignell v. Harpur, 4 Exch. 773.

(d) Secar v. Atkinson, 1 H. Bl. 102.
(e) Ashby v. Ashby, 7 B. & C. 444.
(f) Powell v. Graham, 7 Taunt. 580.
(g) Corner v. Shew, 3 M. & W. 350.
(h) Wms. Exors. 1607 (5th edit.).
(i) Powell v. Graham, supra.

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