J dict 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. 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.Ir 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. t Bro. Exors. 80. u Barry v. Robinson, 1 Bos. & Pul. N. R. 293 x Hampton v. Boyer, Cro. Eliz 557. y Bowyer v. Garland, Cro. Eliz. 600. z Plowd. 192. a. a Palmer v. Lawson, 1 Lev. 201. (39) Wager of law, though it has fallen into disuse, is not abolished. See 1 Bos. & Pul. N. R. 297. 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. But an action may be maintained by the legatees of a specific chattel, against an executor, after his assent to the bequest. An acting executor having once received, and fully bad 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-exccutor, whom he employed to make the payment in question, he is liable 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 (40). Where a sheriff levies money under a fi. fa. and dies, an action may be maintained against his executors for the money so received". Trover will not lie against an executor for a conversion by his testatorf. In this case, the maxim, actio personalis moritur cum personâ applies (41).. By stat. 29 Car. 2. 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, 66 or some memorandum or note thereof shall be in writ b Deeks v. Strutt, 5 T. R. 690. c Doe v. Guy, 3 East, 120. d Crosse v. Smith and another, 7 East, 246. e Perkinson v. Gilford, Cro. Car. 539, f Hambly v. Trott, Cowp. 371. (40) 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 the opinion of Eldon C. in Chambers v. Minchin, 7 Ves. jun. 197,8. (41) It is extremely difficult to collect from the cases on this subject any general rules with respect to the application of this maxim. See, however, Serjeant Williams's note (1) to the case of Wheatly v. Lane, 1 Saund. 216. "ing, and signed by the party to be charged therewith, "or some other person thereunto by him lawfully autho "rized.” 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. And the consideration as well as the promise must be expressed in the written memorandum or note. 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, ought not to be joined in the same action; because such demands require different pleas and different judgments. Hence, if a declaration against an executor or administrator contains counts, which charge him in his representative character, and counts, which charge him in his own right, such declaration will be bad, for misjoinder of cause of action, either on general demurrer1, or in arrest of judgment, or on writ of error. The four first counts in the declaration were on promises made by the intestate; the fifth stated, that after the death of the intestate, the defendant, as administratrix, was indebted to the plaintiff for money, by the defendant, as such administratrix, had and received to the use of the plaintiff. On special demurrer, assigning for cause, that the two causes of action, the one from the intestate, and the other from the administratrix, could not be joined; the court were clearly of opinion, that they could not; because the last count stated a cause of action after the intestate's death, which would exclude one of the pleas that might be pleaded to the other counts, and would warrant a different judg ment. So, counts on promises by the testator, cannot be joined with counts for money had and received by the defendant as executor, or for money lent to defendant as executor, or on account stated of money due from defendant as executor", 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 administra Rann v.Hughes, 7 T. R. 350. n. i Brigden v. Parks, 2 Bos. & Pul. 424. 1 Brigden v. Parks, 2 Bos. & Pul. 424. trix, and the three first counts of the declaration were on promises by the intestate, and the last was on an account stated between plaintiff and defendant, as administratrix, of money owing from the intestate, and in consideration of the intestate being found indebted, a promise by defendant, as administratrix, to pay; the court were of opinion that there was not any misjoinder of action, that the defendant was charged as administratrix in all the counts, and that this was the common mode of declaring, to save the statute of limitations. To a count in covenant, charging the defendants, as executors, for breaches of covenant by their testator as lessee, who had covenanted for himself, his executors, and assigns, may be joined another count, charging them, that after the executors' death, and their proving the will, and during the term, the demised premises came by assignment to one D. A., against whom breaches were alleged; and concluding, that so neither the testator, nor the defendants after his death, nor D. A. since the assignment to him, had kept the said covenant, but had broken the same. 3. What Executors are to be made Defendants.-It has been observed, that in actions brought by executors, it is necessary, that where there are two or more, they should all join, whether they administer or not, if one of them has proved the will. But this is not necessary when actions are brought against them; for the mere circumstance of a person being named executor does not compel the plaintiff to make him a defendant, unless he has administered. Hence', where executors, defendants, plead in abatement, that there are other executors not named, they must add, that the executors not named have administered; for the plaintiff is bound to take notice of such executors only as have administered. Although executors cannot sever in declaring, yet they may in pleading. Hence, although infant executors may sue by attorney with executors of full age', because those of full age may appoint an attorney for those within age, yet they must defend by guardian. If any of the executors diet, actions must be brought, not against the surviving executors and executors of deceased execu tors, but against surviving executors only. If there are two or more administrators, they must all be o Secar v. Atkinson, 1 H. Bl. 102. r Swallow v. Emberson, 1 Lev. 161. 8 Frescobaldi v. Kinaston, Str. 783. t 4 Leon. 193. Bro. Exors. 99. Fită. Abr. Exor. 28. |