a party-wall under the authority of the building act, (14 Geo. III. c. 78. s. 41,) even though he has no other assets than the improved rent; for the expenses of pulling down and rebuilding a party-wall, are a charge upon the land in the hands of the owner of the improved rent; therefore, where an administrator was sued upon the statute, and pleaded that he was only the owner in his character of administrator in right of his intestate, and after setting out an unsatisfied judgment against himself, also as administrator, alleged that he had fully administered all the estate, but a sum which was not sufficient to satisfy the judgment; held, on demurrer, that the plea was no answer to the action a An executor, who gives no orders for the funeral of his testator, is liable only to the extent of the expenses of a funeral suitable to the rank and circumstances of the testator. And it seems that he is not liable at all where the funeral is ordered by another person, to whom the undertaker gives credit b. Where the attorney of one who had a claim on the estate of a testator, wrote a letter to the executrix, stating that the creditor did not claim the debt from her as executrix, but that he claimed it from her individually, on the ground of her having become liable by having paid the interest for the debt from time to time; it was held, that the letter did not release her from her liability as executrix; for the reason given for the alteration of the liability was untenable in point of law, because there was no consideration for the change, and even if there was, there was no promise in writing to satisfy the statute of frauds c. 2.-When an executor will be answerable de bonis propriis.] A promise by an executor or administrator to pay a debt of the deceased, will not render him personally liable, unless it be in writing, and there be a sufficient consideration e. Forbear By the statute of Frauds, 29 e At the common law, an executor Liability of ance to sue an executor (having assets) for a certain time is a good consideration for a promise by the executor a. So forbearance to sue for a reasonable time, although the executor have not assets, is a sufficient consideration to charge him de bonis propriis. So forbearance of a suit for a legacy, was held to be a sufficient consideration to render the executor personally liable; though it was said that if it had appeared by the declaration that the plaintiff had no cause of action, the forbearance would not be sufficient c. Where two executors gave a promissory note to the plaintiff, in the following words, "as executors to the late T. S., we severally and jointly promise to pay to N. C. the sum of 2001. on demand, with lawful interest for the same;" held, that they were personally liable on the note, on the ground that the promise, from the circumstance of interest being added, necessarily imported a payment at a future day, and an executor promising to pay a debt at a future day makes the debt his own d. Where a bill is indorsed to certain persons, as executors, and they again indorse it, they become personally liable *. So where the husband of the defendant, executrix, was indebted to the plaintiff in 50l., and she in consideration that the plaintiff' would deliver to her six barrels of beer, promised to pay the plaintiff, as well the 501. due by the intestate, as for the barrels delivered to herself; held, that she was personally liable in assumpsit for both debts, and that the judgment should be de bonis propriis1. It is a general rule that the executor of a lessee is the execu- liable as assignee, except that with respect to rent, his liability does not exceed what the property yields. In an action tor of a lessee for rent. for use and occupation, charging the defendant in his own character, who was an administrator of the original lessee, for rent due after the intestate's death; held, that although the defendant had taken possession, yet, having proved that the premises had been productive of no profit to him, and that eight months after the death of the intestate, he had offered by parol to surrender them to the plaintiff, such proof constituted a good defence to the action a. But if the premises be of any value, or productive of any profit, though less than the rent, the executor, or administrator, will be liable as assignee during the term, for so much as they are worth b. The rule, Liability in however, with respect to rent, does not extend to a covenant for repair; therefore, where an administrator had occupied premises demised to the intestate, it was held to be no plea to an action of covenant for non-repair, that the premises yielded no profit. So he is liable for waste done in his own time, and the judgment for damages shall be against him de bonis propriis d. The consideration of the promise must be in writing, as well as the promise itself, otherwise it is voide. It is, however, sufficient if the consideration can be gathered from the whole tenor of the writing, and it is not necessary that it should be stated on the face of it in express terms f. 3.-Liability of an executor on an award.] If an executor or administrator refers generally all matters in dispute to arbitration, without protesting against the reference being taken as an admission of assets, it will amount to such an admission 8. And if he submits to pay whatever will be awarded, he is personally bound to perform the award, whether he has assets or not. As where the defendant bound himself as administrator to abide by a Remnant v. Bremridge, 2 Moore, 94. 8 Taunt. 191. b Rubery v. Stevens, 4 B. & Ad. 241. 1 Saund. 112. 5th Ed. Where the result of the authorities on this point is laid down. Tremeere v. Morison, 1 Bing. Per Tindal, C. J., id. 96. Saunders v. Wakefield, 4 B. & A. fld. Stadt v. Lill, 9 East, 348. 1 Bing. 196. 8 Moore, 2. of respect Covenants. When he is not liable. an award to be made touching matters in dispute between the intestate and another, and the arbitrator awarded that the defendant, as administrator, should pay the plaintiff the sum of 2987.; it was held, that the defendant could not plead plene administravit to an action on the bond, for the bond was a personal engagement by him to perform the award, without any regard to assets a. So where on a reference, the arbitrator ascertained the amount of the claim of a creditor on the estate of the deceased, and directed that the administrator should pay it; it was held, that as the arbitrator had awarded the defendant to pay the amount, it was equivalent to determining as between the parties, that he had assets to pay the debt, and that he might be attached for nonpayment b. But a mere submission to arbitration will not render an executor or administrator personally liable. As where the defendant, as administrator, submitted the matters in difference to an arbitrator, who awarded that a certain sum was due from the intestate to the plaintiff, without saying by whom it was to be paid; it was held, that the defendant might plead plene administravit to an action for the sum awarded. So where an arbitrator awarded that a certain sum was due from the testator, and directed that sum to be paid by the executor out of the assets, on or before a certain day; the court said, that the latter part did not conclude the question of assets, but left it open; and that if the executor had fully administered at the day that was fixed for the payment, he would not be bound to pay d. Where a cause was referred to arbitration, the costs being to abide the event, and the action was brought by an administrator, with counts in the declaration on promises to himself as administrator, and the arbitrator awarded that the plaintiff had no cause of action; held, that the plaintiff was liable to an attachment for not paying the costs, and that the terms of submission could not be varied by affidavits shewing that it was not the intention to make him personally liable o. 1.—In what cases an executor may maintain an action.] AN executor or administrator so completely represents the deceased in respect of his personalities, that it is an established rule, that any right of action fonnded on any contract, covenant, debt, or other duty, on which the deceased might sue in his lifetime, is transmitted to his executor or administrator a. At common law, no action of account lay for an executor or administrator, upon the principle that the account rested in the privity and knowledge of the testator only b. But this remedy has been given to executors by the statute of Westminster (1 Edw. I. st. 1. s. 2.), to the executors of executors by statute 25 Edw. III. c. 5., and to administrators by the 31 Edw. III. c. 11. It was also a principle of the common law, that when any injury was done to the person or property of another, for which damages only could be recovered in satisfaction, the action died with the person to whom the injury was done; the rule in such cases being, actio personalis moritur cum persona o. But by the statute 4 Edw. III. c. 7, de bonis asportatis in vita testatoris, reciting, "that in times past executors had not had 1 Saund. 216. a. n. ante. As to contracts entered into with themselves, executors may sue in all cases where the money, when recovered, would be assets, as for a note indorsed to them, King v. Thom, 1 T. R. 487. Catherwood v. Chabaud, 1 B. & C. 154. For goods sold by them, Cowell v. Watt's, 6 East, 408.; or for money paid by them in that character, Ord v. Fenwick, 3 East, 104. Where the testator "entered into a parol contract to give a lease to the defendant, and died before it was |