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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. 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 2007. 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.

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 50%., and she in consideration that the plaintiff would deliver to her six barrels of beer, promised to pay the plaintiff, as well the 507. 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 propriis.e

lessee for

It is a general rule that the executor of a lessee is liable as Liability assignee, except that with respect to rent, his liability does not of the exexceed what the property yields. In an action *for use and ecutor of a occupation, charging the defendant in his own character, who rent. was an administrator of the original lessee, for rent due after *991 the intestate's death; held, that although the defendant had taken possession, yet, having proved that the premises had been productive of no prost 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. 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. The rule, however, with re- Liability spect to rent, does not extend to a covenant for repair; there in respect

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* Johnson v. Whitcott, 1 Roll. Ab. 24. 1 Saund. 210. b. Childs v. Monins, 2 B. & B. 460. (6 Eng. C. L. 200.) 5 Moore, 281. But see Bowerbank v. Monteiro, 4 Taunt. 844.

• Davis v. Reyner, 2 Lev. 3.

Per Buller, J., King v. Thom, 1 T. R. 489.

Wheeler v. Collier, Cro. Eliz. 406. Where the defendant is personally liable, the judgment will be de bonis propriis, although he be charged as promising as executor. Powell v. Graham, 7 Taunt. 585. (2 Eng. C. L. 225.) Wigley v. Ashton, 3 B. & A. 101. (5 Eng. C. L. 238.)

'Remnant v. Bremridge, 2 Moore, 94. 8 Taunt. 191. (4 Eng. C. L. 66.)

Ruberry v. Stevens, 4 B. & Ad. 241.

(24 Eng. C. L. 50.) 1 Saund. 112, 5th

Ed. Where the result of the authorities on this point is laid down..

of cove

nants.

When an executor

or admin

fore, 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.b

The consideration of the promise must be in writing, as well as the promise itself, otherwise it is void. 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.d

3.-Liability of an executor on an award.] If an executor or administrator refers generally all matters in dispute to arbiistrator is tration, without protesting against the reference being taken as personally an admission of assets, it will amount to such an admission. liable on And if he submits to pay whatever will be awarded, he is an award. personally bound to perform the award, whether he has assets

When he

ble.

or not. As where the defendant bound himself as administrutor to abide by 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. 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 non-pay

ment.g

But a mere submission to arbitration will not render an is not lia- 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.

Tremeere v. Morison, 1 Bing. N. C. 89. (27 Eng. C. L. 315.)
Per Tindal, C. J., id. 96.

So

Wain v. Warlters, 5 East, 10. Saunders v. Wakefield, 4 B. & A. 595. C. L. 531.) Jenkins v. Reynolds, 3 B. & B. 14. (7 Eng. C. L. 328.) 24, 5th Ed.

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1 Camp.

Id. Stadt v. Lill, 9 East, 348. Bateman v. Phillips, 15 East, 271. 242. Russell v. Moseley, 3 B. & B. 211. (7 Eng. C. L. 414.) Stead v. Liddard, 1 Bing. 196. (8 Eng. C. L. 294.) 8 Moore, 2. • Per Lord Eldon, in Robson v., 2 Rose, 50.

'Barry v. Rush, 1 T. R. 691.

Worthington v. Barlow, 7 T. R. 453. Riddell v. Sutton, 5 Bing. 200. (15 Eng.

C. L. 416.) 2 M. & P. 245.

Pearson v. Henry, 5 T. R. 6.

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. 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 showing that it was not the intention to make him personally liable.b

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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 founded on any contract, covenant, debt or other duty, on which the deceased might sue in his lifetime, is transmitted to his executor or administrator. 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. 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

⚫ Love v. Honeybourne, 4 D. & R. 814. (16 Eng. C. L. 222.) Spivy v. Webster, 2 Dowl. P. C. 46.

* 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. (8 Eng. C. L. 45.) For goods sold by them, Cowell v. Watts, 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 executed, the contract being void by the statute of frauds, the plaintiff's being executors of the deceased made a new contract with the defendant for a similar lease, which was afterwards executed; held, that the plaintiffs might sue in their personal character on the contract. Grissell v. Robinson, 2 Hodges, 138. 3 Bing. N. C. 10. (32 Eng. C. L.)

& Co. Litt. 89, b. Inst. 404. 1 Saund. 216, b.

The executor or

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.

But by the statute 4 Edw. III, c. 7, de bonis asportatis in vita testatoris, reciting "that in times past executors had not *994 had *actions for a trespass done to their testators, as of the goods of the said testators carried away in their life," it was enacted, "that the executor in such cases, shall have an action against the trespassers, and recover their damages in like manner as they, whose executors they be, should have had if they were living." This being a remedial law, has always been expounded largely, and though it makes use of the word tresadminis- passers only, has been extended to other cases within the maintain meaning and intent of the statute; therefore, by an equitable an action construction of the statute, an executor or administrator shall for inju- now have the same actions for any injury done to the personal ries done estate in his lifetime, whereby it has become less beneficial to to the per- the executor or administrator, as the deceased himself might tate of the have had whatever the form of action may be.b It has been deceased. held, that the executor of a termor, (although he has demised

trator may

sonal es

for a longer term than his own) may maintain an action on the covenant for the stipulated rent, due since the death of his testator, on the privity of contract, although not on any supposed privity of estate. So an executor or administrator may by the equity of the statute, have a quare impedit for a disturbance in the time of the deceased. So he may bring ejectment where the testator had a lease for years and was ousted. So he may bring trespass or trover; or an action on the case against a sheriff for a false return, made to a fi. fa. in the lifetime of his testator. So, he may have an action against the sheriff for suffering a person in his custody in the lifetime. of the testator, to escape. So, the executor of a purchaser may sue for a breach of contract on sale of an estate in fee simple, and the consequent loss of interest and expense. But he cannot sue for the breach of the implied promise of an *995 attorney to investigate the title to the freehold estate without stating that the testator sustained some actual damage.j

* 1 Saund. 217.

b. Emerson v. Emerson, 1 Vent. 187. Berwick v. Andrews, Sir Wm. Jones, 174. 2 Lord Raym. 974. 1 Saund. 217.

Baker v. Gosling, 1 Bing. N. C. 19. (27 Eng. C. L. 292.)

Went. 164. Smalwood v. Bishop of Coventry, Cro. Eliz. 207. 1 Leon. 205. Wms. 513.

• Bro. Ab. Ex. 45. Slade's Case, 4 Co. 95.

Russell's Case, 5 Co. 57. Rutland v. Rutland, Cro. Eliz 377.

Williams v. Grey, Lord Raym. 40.

(25 Eng. C. L. 231.) 4 M. & Scott, 417.

Berwick v. Andrews, 2 Lord Raym. 973. 1 Salk. 314. Orme v. Broughton, 10 Bing. 533. › Knights v. Quarles, 4 Moore, 532.

2 B. & B. 102. (6 Eng. C. L. 34.) To this

al suffer

covenant

But the statute does not extend to injuries arising from per- But not sonal sufferings. An executor or administrator, therefore, can- for personnot maintain an action for an assault, false imprisonment, ings; slander, deceit, or the like; nor for a breach of a promise of marriage to the deceased, where no special damage to the personal estate can be stated on the record; nor can an executor nor for a sue for a breach, even in the lifetime of his testator, of a cove- breach of nant relating to the realty, as for good title on a deed of conrelating to veyance, without showing some special damage to the perso- the realty. nal estate, but the action must be brought by the heir or the devisee. But where the deceased was evicted, and the land and consequently the covenant did not descend to the heirs; it was held, that the executors only could sue. And in a recent case, where the defendant covenanted not to fell, stub up, tear, lop or top timber trees excepted out of the demise; it was held, that the executor of the deceased landlord might maintain an action on a breach of the covenant committed in the lifetime of the testator, no part of the timber loppings having been removed by the defendant, for the covenant was collateral and did not run with the land. The trees being excepted out of the demise, the covenant not to fell them was the same as if there had been a covenant not to cut down trees growing on an adjoining estate of the lessor.

Nor did the statute extend to injuries done to the freehold of the deceased; consequently his executor or administrator could not maintain trespass quare clausum fregit, or an action for cutting down trees or other waste, in the lifetime of the deceased, on his freehold."

Executors

or admin

*But now, by the statute 3 & 4 W. IV, c. 42, s. 2, after reci- *996 ting that there is no remedy provided by the law for injuries to the real estate of any person deceased committed in his lifetime, nor for certain wrongs done by a person deceased in his lifetime to another in respect of his property real or personal; it is enacted "that an action of trespass, or trespass on the case, may be maintained by the executors or administrators of any istrators deceased person for any injury to the real estate of such person may maincommitted in his lifetime, for which such person himself might tain an achave maintained an action, provided such action be brought tion for an within one year after his death, and the damages recovered injury shall be part of the personal estate of such person; and that done to the trespass may be maintained against executors or administra- in the lifetors for any wrong committed by the deceased in his lifetime time of the

real estate

case Mr. Chitty, in his Treatise on Pleading, p. 19, adds sed, quære, whether damage, viz. deterioration in value of saleable interest, would not be inferred.

2 1 Saund. 217, a.

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Chamberlain v. Williamson, 2 M. & S. 408.

Kingdon v. Nottle, 1 M. & S. 355. 4 Id. 53. 188. King v. Jones, 5 Taunt. 418. (1 Eng. C. L. 139.)

Id. Lucy v. Levington, 2 Lev. 26. 1 Vent. 175.

Raymond v. Fitch, 1 Gale, 337. 2 C. M. & R. 588.

'Bro. Ex. Pl. 120. Williams v. Breedon, 1 B. & P. 329. Went. 103.

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