deceased, to another in respect of his real or personal property, provided and they that such injury shall have been committed within six calenare liable dar months before his death, and the action be brought within to an action for in- six calendar months after such executor or administrator shall have taken upon themselves the administration of the effects of the deceased; and the damages so recovered shall be payable in like order of administration as the simple contract debts of such person." juries done to property by the de ceased in his lifetime. 2.Of the joinder of parties.] Where a personal contract is made jointly with two or more persons, and one or more of them die, the action on such contract must be brought in the name of the survivor, and the representatives of the deceased cannot be joined, nor can they sue separately; for it is a general rule that though the right of a deceased partner, devolves on his executor, yet the remedy survives to his copartner or co-obligee, who alone must enforce the right of action, and will be liable on recovery to account to the executor or administrator for the share of the deceased." But if the interest of the covenantees be several, the executor of one of them may *997 sue, though *the other be living, and though the language of the covenant be joint. If there be several executors or administrators they must all join, though some be under the age of seventeen or have not proved the will, or refused before the ordinary, for the grant of a probate to one enures to the benefit of them all; and it makes no difference that the issue is raised on a plea of ne unques executor.e Nonjoinder can be taken advantage of by abatement only. If one alone of several executors or administrators bring an action either in form ex contractu or ex delicto, the defendant can only take advantage of the nonjoinder of his co-executor or co-administrator, by pleading in abatement after oyer of the probate or letters of administration, that the other executor or administrator is alive and not joined in the action. If the defendant plead the general issue he is too late, he cannot then come at the fact of there being another executor.f If one executor of several sell the goods of his testator, he alone may maintain an action for the price, not naming himself executor.g Martin v. Crump, 2 Salk. 444. 1 Ld. Raym. 340. Golding v. Vaughan, 2 Ch. Rep. 437. 2 Saund. 117. Camp v. Andrews, Carth. 171. 3 Lev. 290. R. v. Collector of Customs, 2 M. & S. 223. Anderson v. Martindale, 1 East, 497. (6 Eng. C. L. 139.) Barford v. Stuckey, 2 B. & B. 333. 5 Moore, 23. Withers v. Bircham, 3 B. & C. 256. (10 Eng. C. L. 68.) 1 Saund. 154. Bro. Ex. 88. Smith v. Smith, Yelv. 130. Brooke v. Stroud, 1 Salk. 3. 1 Saund. 291, i. Hensloe's case, 9 Rep. 37, a. Lakin v. Watson, 4 Tyr. 839. 2 D. 633. Per Bayley, J., in Webster v. Spencer, 3 B. & A. 363. (5 Eng. C. L. 317.) Walters v. Pfeil, M. &. M. 362. (22 Eng. C. L. 334.) Scott v. Briant, infra. If a debtor make his creditor and another his executors, and the creditor neither prove the will, nor act as executor, he may sue the other for the debt though he has not renounced. 3 T. R. 557. • Scott v. Briant, 2 H. & Wol. 54. 6 N. & M. 381. 1 Sannd. 291, i. Brassington v. Ault, 2 Bing. 177. (9 Eng. C. L. 369.) 9 Moore, 340. Went. 224. Godolph. pt. 2, c. 16, s. 1. So, if goods be taken out of the possession of one of several executors, he may sue alone to recover them. If an executrix or administatrix marry, she and her husband must join in an action for the breach of any personal contract made with the deceased; if she sue alone, the defendant can only take advantage of it by abatement; but the husband may sue alone on a contract made with the husband and wife as executrix.d *998 the detinet 3.-The declaration.] If an executor or administrator sues in respect of a cause of action which occurred in the time of An executhe deceased, he must declare in the detinet, that is in his re- tor should presentative capacity only. But it is laid down, that where declare in the cause of action accrues after the death of the testator or in- only. testate, as in case of contracts made with his representative as such, if the money recovered will be assets, the executor or administrator has his option to declare in his representative character, or in his own name. However, in all actions by an executor or administrator, the declaration should, in strictness, be only in the detinet, except in an action upon a judgment recovered against an executor suggesting a devastavit, when the debet and detinet is proper; and the defendant cannot in such action plead plene administravit. Where a plaintiff declares in the debet and detinet in a case which ought to be laid in the detinet only, it is demurrable; but it is otherwise where the plaintiff declares in the detinet only in a case which strictly ought to be laid in the debet and detinet; for a party may abridge his demand, although he cannot extend it.i(1) There is nothing peculiar relating to the form of the declara- How an tion in actions by executors. An executor or administrator executor should describe himself as suing in that character, and in stat- should deing the debt or promise to him, the words " as executor or ad- himself. ministrator," should be inserted, or the omission will be fatal, even after verdict. Where in the general indebitatus count it scribe * Id. An executor or administrator may arrest a party in the same manner as if they were suing in their own right; and if they hold a party to bail without reasonable or probable cause, for a debt due to the deceased, they are within the provisions cf 43 G. III, c. 46, s. 3. Feely v. Reed, 5 B. & A. 515, n. (7 Eng. C. L. 178.) Com. Dig. Bar. & Fem. (V.) Milner v. Milnes, 3 T. R. 631. 4 Ankerstein v. Clarke, 4 T. R. 616. Yard v. Ellard, 1 Salk. 117. 1 Saund. 112. Com. Dig. Pleader, (2 D. 1.) Gallant v. Bouteflower, 3 Doug. 36. (26 Eng. C. L. 26.) Ord v. Fenwick, 3 East, 103. Cowell v. Watts, 6 East, 405. Clark v. Hougham, 2 B. & C. 149. (9 Eng. C. L. 47.) Marshall v. Broadhurst, 1 C. & J. 403. 1 Tyrw. 308. Partridge v. Court, 5 Price, 412. Catherwood v. Chabaud, 1 B. & C. 150. (13 Eng. C. L. 45.) Hosier v. Arundell, 3 B. & P. 11. Powley v. Newton, 6 Taunt. 453. (1 Eng. C. L. 446.) Webster v. Spencer, 3 B. & A. 362. (5 Eng. C. L. 316.) Wms. 570. 1149. 1 Saund. 1. Com. Dig. Pleader, D. 2. 2 W. 8. Chitt. Pl. 1, 361. 2, 248, n. ¡ Wilson v. Hobday, 4 M. & S. 120. 1 Saund. 1, a, 5th Ed. 1 Saund. 112. Henshall v. Roberts, 5 East, 150. (1) (Adams v. Campbell, 4 Vcrm. 447.) › was stated that the defendant was indebted to the plaintiff as executrix for money lent by the plaintiff to the defendant; the other considerations in the same count were alleged to move from the plaintiff as executrix; the promise was alleged as *999 made "to the plaintiff, executrix, as aforesaid:" held, on special demurrer, that the declaration was vitiated by this misjoinder of different considerations in different rights, but that if they had ali appeared to have been in the same right, it would be sufficient if any one consideration were properly averred, as the remaining considerations might be rejected."(1) Profert. What counts or action may be joined. After the conclusion to the damage, &c., a profert of the letters testamentary should be made; and it should appear that the letters were granted by proper authority. Where in a declaration by an administratrix, the plaintiff made profert of letters of administration " duly granted by the Consistory Court of St. Asaph," without making the usual statement of the grant of letters of administration in the body of the declaration; held bad on special demurrer, as not showing that the letters of administration were granted by the proper authorities; held, also, that the omission of the date of the grant was immaterial. The omission of the profert is, however, aided by 4 Anne, c. 16, unless specially demurred to." The plaintiff cannot join in the same declaration a demand as executor or administrator, with a claim in his own right; in causes of case of a misjoinder, the declaration will be bad on a general demurrer; or in arrest of judgment; or in error. But whenever the money recovered on each count will be assets, the counts may be joined in the same declaration. Therefore the same declaration which contains counts on promises to the testator may contain a count on an account stated with the plaintiff as executor, concerning money due to the testator from the defendant, or concerning money due to the plaintiff as executor. So, counts on promises made to a testator or intestate may be joined with counts on a promissory note given to the a M'Clelland v. M'Adam, 1 Alcock & Napier, 488. b Bac. Ab. Exec. C. с Hughes v. Williams, 2 C. M. & R. 331. 4 Dowl. 169. 1 Gale, 235. d 2 Saund. 9, n. 12. Com. Dig. Pl. (0.) 3. e 2 Saund. 117, e. 1 Ch. Pl. 205. Thompson v. Stent, 1 Taunt. 322. Id. Cowell v. Watts, 6 East, 405. Needham v. Corke, Freem. 538. Powell v. Graham, 7 Taunt. 580. (2 Eng. C. L. 223.) (1) (The rule is, that when the action is on a contract with the decedent or for a tort to the goods, before they have actually come to the executor's possession, it can be maintained by him only on the decedent's title, and consequently only in a representative character, but where it is on a contract express or implied, which has sprung up or been created since the decedent's death, or for a tort to the goods in the executor's possession, or for converting or detaining them, having escaped from his possession, or for the price of them having been sold by him, it can be maintained by him only in his own right; and the naming himself executor will not change its nature. Per Gibson C. J. in Kline v. Guthart, 2 Penň. R. 491. Kendall v. Lee, 2 Penn. R. 485. Boggs v. Bard, 2 Rawle, 102. Adams v. Campbell, 4 Verm. 447. Stiles v. Causten, 2 Gill & Johns. 49. Turner v. Plowden, Id. 455. Sasscer v. Walker, 5 Id. 102.) plaintiff as administrator or executor, or to a count for money lent by the plaintiff as executor, or to a count for money *1000 had and received by the defendant to the use of the plaintiff as executor, or a count for materials found, and work and labor done by the plaintiff as executor. So a count for work done by the plaintiff as administrator may be joined with counts for goods sold by the intestate on promises to him; for the work may have been done in completing a contract of the intestate's for the benefit of the estate. So, in a declaration in debt, a count on a judgment recovered by the plaintiff as executor, may be joined with counts on debts which accrued to the testator.f counts cannot be joined. But an executor cannot join in the same declaration a count What for a demand which accrued to him in his own right, with a count on a cause of action which is laid to have been vested in him as executor or administrator. He cannot join a count upon a bond given to his testator with a count upon a bond given to him as executor; for the executor by taking the bond would extinguish the original debt, and it would not, when recovered, be assets; on such a bond he must declare in his own name."(1) In every count stating a debt or promise to the plaintiff in his representative capacity, it must be averred that it accrued to him "as executor," or "as administrator;" it is not enough to say, that it accrued to him "executor."'i But where 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 the plaintiffs, a writ of error was brought upon the ground of mis*joinder, and the House of Lords affirmed the judgment with *1001 costs.j 4.- The pleadings.] The defendant, besides the ordinary Partridge v. Court, 5 Price, 412, affirmed in error, 7 id. 591. Catherwood v. Chabaud, I B. & C. 150. (8 Eng. C. L. 45.) 1 Ch. Pl. 303. Webster v. Spencer, 3 B. & A. 365. (5 flower, 3 Doug. 31. (26 Eng. C. L. 26.) Eng. C. L. 316.) (17 Eng. C. L. 470.) Dowbiggin v. Harrison, 9 B. & C. 669. Gallant v. Boute Clark v. Hong See Ord v. Fenwick, 3 East, 108. Crawford v. Whittal, 1 Doug. 4, n. So an executor may in the same declaration declare for rent due in his own time, and for that which accrued in the testator's time. Tayler v. Holmes, Freem. 367. 2 Saund. 117, e. 1 Ch. Pl. 204. h Id. Hosier v. Lord Arundell, 3 B. & P. Henshall v. Roberts, 5 East, 150. 2 Saund. 17, e. 1 Ch. Pl. 204. J Lancefield v. Allen, 1 Bligh. N. S. 592. Where the affidavit of debt and writ stated the debt to be due to the plaintiffs "executors of," and not "as executors of," and the declaration stated it to be due to them in their own right; held, no variance. 1 Dow. 97. (1) (On joinder of counts, see Bank of Pennsylvania v. Haldiman, 1 Penn. R. 161. Hap good v. Haughton, 10 Pick. 154. Howard v. Powers, 6 Ohio, 93. Fry v. Evans, 8 Wend. 305.) Plea of defences, may deny the plaintiff's representative character by pleading ne unques executor or administrator; but since the rules of H. 4 W. IV, the plaintiff's title as executor or administrator must be taken as admitted, unless specially denied, it cannot be disputed under the general issue. Under the plea ne unques of ne unques executor, the defendant may show that the proexecutor. bate is void, as that the stamp is insufficient, or the seal forged; but he cannot take advantage of such defect under the general issue.a Where letters of administration have been obtained in an inferior diocese, the defendant may plead in bar, that there were bona notabilia, and may give that fact in evidence under the plea of ne unques executor; for we have seen in such case, the ordinary has no jurisdiction to grant probate, and the grant is therefore void. If the defence be that the letters of administration were unfounded, on the ground that the defendant did not reside within the diocese of the bishop who granted administration, but in a different province at the time of the death of the intestate, that fact should be specially pleaded; it cannot be given in evidence under the plea, "that the plaintiff was not, nor is administrator," &c.d Proof of executor or administrator. 5.-Evidence.] When the representative character of the the title of plaintiff is denied by plea, he must prove his title as executor or administrator. The title of an executor is established by proof of the death of the testator and by the production of the probate. The seal of the ecclesiastical court on the probate proves itself. If the probate be lost, the ecclesiastical court *1002 will grant an exemplification, which will be evidence of the proving of the will. Or the act book of the court, containing an entry of the will having been proved, &c., will be sufficient without accounting for the non-production of the probate. The original will, though produced by the officer of the court cannot be read in evidence unless it bear the seal of the court or some other mark of authentication. Where there are several executors, probate to one only is evidence of the title of all. The title of the plaintiff as administrator may be proved by the production of the letters of administration, or of a certificate or exemplification thereof granted by the ecclesiastical court, or by the original book of acts directing the grant of the letters, or by an examined copy of the act book.' Thynne v. Protheroe, 2 M. & S. 555. 1 Saund. 375. 1 Saund. 274, n. 3. c Ante, 969. Stokes v. Bate, 5 B. & C. 491. (11 Eng. C. L. 282.) 2 Stark. Ev. 316. Kempton v. Cross, Cas. temp. Hardwicke, 108. 'Shepherd v. Shorthoze, I Stra. 412. B. N. P. 246. Cox v. Allingham, Jacob, 514. R. v. Barnes, 1 Stark. 243. 335. (15 Eng. C. L. 230.) (2 Eng. C. L. 374.) Pinney v. Pinney, 8 B. & C. Walters v. Pfeil, M. & M. 362. (22 Eng. C. L. 334.) Per Bayley, J., in Ramsbottom v. Buckhurst, 1 Id. |