*the name of the insolvent, as trustee for the assignee.(g) When [*98 a] in such a case there has been an absolute sale and transfer of the debt due to the insolvent before the title of his assignees has accrued, it seems clear that the amount of the price or purchase-money of such debt will be immaterial with respect to the right of the insolvent to sue. But if the purchase of the debt be conditional only at the date of the insolvency, so that in fact the debt due to the insolvent stands as a security for payment of that due from him, then it seems that the assignees will be entitled to sue, whether the debt assigned by the insolvent be greater than, equal to, or less than that due from him; for, if greater, the assignees would have an immediate interest in the sum to be recovered; and if equal to or less than that for which it stands as a security, yet in as much as the debt secured might be diminished by payment before recovery of the debt assigned, and a surplus thus remain applicable to the payment of the insolvent's general creditors, the possibility of such surplus would vest the title to recover the debt in the insolvent's assignees,(") according to the principle which has been in several cases established, and which is applied by the Court of Exchequer Chamber in Trott v. Smith,(s) where, to a declaration in covenant for default made in payment of a sum of money, the plea alleged that after the *said breach of covenant the plaintiff became bankrupt, &c.; and [*98 b ] Tindal, C. J., with reference to an objection raised, viz., that the cause of action passed to the assignees, says, "the question will be whether there can be any possible interest which could pass to the assignees." In Leslie v. Guthrie,(t) and Dangerfield v. Thomas, (u) the attention of the court was not drawn to the circumstance that the equality of the two debts at the time of the bankruptcy, when the title of the assignee accrued, was not averred.(x)

128. Subject, however, to the above remarks, the assignees of the insolvent are the proper parties to sue for property accrued to the insolvent before insolvency, or accruing subsequently, but before his final discharge; and such assignees may interpose and take the benefit of any contract entered into with the insolvent during the last-mentioned period; although, if they do not so interpose, it seems that the insolvent may maintain an action on such contract. (y) If a discharged insolvent be permitted to remain in possession of premises which had become vested in the assignee, and to demise them for a term, it will be no defence to an action by the lessor for rent in arrear, that notice was given to pay such rent to the

(9) Buck v. Lee, 1 A. & E. 804;i Tibbits v. George, 5 A. & E. 107 ; Sims v. Thomas and Strachan v. Thomas, 12 A. & E. 536.1

(r) D'Arnay v. Chesneau, 13 M. & W. 796, where the cases are reviewed.

(s) 12 M. & W. 703. See also Carpenter v. Marnell, 3 B. & P. 40; Scott v. Surman, Willes, 400; Parnham v. Hurst, 8 M. & W. 743.

(t) 1 B. N. C. 697.

(x) Judgment, 13 M. & W. 810.

(u) 9 A. & E. 292.m

(y) Taylor v. Buchanan, 4 B. & C. 419, 420 ;n which was decided under the stat. 1 Geo. 4, c. 119. See Hepper v. Marshal, 2 Bing. 372; Per Abbott, C. J., Lea v. Telfer, 1 C. & P. 146.P By 5 & 6 Vict. c. 116, s. 1, the official assignees shall hold and stand possessed, of the estate and effects of the insolvent petitioner, in like manner as the official assignees of a bankrupt. See Herbert v. Sayer, 5 Q. B. 965.

¡Eng. Com. Law Reps. 28. Id. 31. 'Id. 40. mÏd. 36. "Id. 10. Id. 9. PId. 11.

assignee, unless it be shown that a new tenancy *was created

between such assignee and the defendant. (s) But the insolvency [*99]

of the plaintiff, and assignment to the provisional assignee, constitute a good plea in bar of further maintenance of the action, notwithstanding such assignee, and subsequently the assignees appointed by the court respectively, had notice of the suit, and permitted the same to be continued in the insolvent's name; for all such rights of action in this case, as in that of bankruptcy, are transferred by the assignment.()

2.-Executors and Administrators.

When Personal Representatives may sue, ss. 129, 130. Limitations of the Rule, s. 131. How Personal Representatives should sue, s. 132. Rule as to the Joinder of Personal Representatives, and in Case of Survivorship, &c., ss. 133-135. Limited Administrations, s. 136.

129. On the death of a covenantee, his personal representatives(u) are, as a general rule, the parties to sue on all covenants broken in his lifetime; as, on a covenant for quiet enjoyment, (x) to repair,(y) or to discharge the land from incumbrances ;(z) and they may sue without being expressly named, for they represent the *person of the testator or intestate. (a) There [*100] is, however, this distinction between a covenant running with the land, and one purely collateral; that in the former case, where the formal breach has been in the ancestor's lifetime, but the substantial damage has taken place since his death, the real, and not the personal representative is the proper plaintiff';(b) whereas, in the case of a covenant not running with the land, and intended not to be limited by the life of the covenantee—as a covenant not to fell trees excepted from the demise—the heir or devisee of the land could not sue for a breach in the lessor's lifetime, and the personal representative is alone entitled so to do. (c) On a covenant made with testator in reference to a chattel, his executors may sue, though not named ;(d) but on a covenant in an indenture of apprenticeship it has been held that they cannot sue, the apprentice not being bound to serve the executors of the master.(e)

(s) Partington v. Woodcock, 6 A. & E. 690.я

(1) Swann v. Sutton, 10 A & E. 623.г

(u) Administrators derive the right of suit from 31 Edw. 3, st. 1, c. 11.

(x) Lucy v. Levington, 2 Lev. 26.

(u) Morley v. Polhill, 2 Ventr. 56, commented on, per Parke, B., 2 Cr. M. & R. 592. 594. (z) Smith v. Simonds, Comberbach, 64.

(a) Per Cur. Lucy v. Levington, 2 Lev. 26; Co. Litt, 209; Litt. s. 339; Com. Dig. Cov. enant, (B. 1).

(b) Kingdon v. Nottle, 1 M. & S. 355, and 4 M. & S. 53; King v. Jones, 5 Taunt. 518, affirmed on error, M. & S. 188; Raymond v. Fitch, 2 Cr. M. & R. 598, 599; Ricketts v. Weaver, ante, p. 38 d.

(c) Per Lord Abinger, C. B., Raymond v. Fitch, 2 Cr. M. & R. 598, 599; Per Parke, J., Carr v. Roberts, 5 B. & Ad. 84.s

(d) Per Parke, J., Doe d. Rogers v. Rogers, 2 Nev. & Man. 555.t

(e) Baxter v. Burfield, 2 Stra. 1266.

Eng. Com. Law Reps. 33. Id. 37. Id. 27. Id. 28.

130. So, the executor or administrator has a right of suit, not only for the recovery of all debts due to the deceased by specialty or otherwise, but on all contracts with him, whether broken in his lifetime or subse[*101] quently to his decease, of which the breach occasions an injury to the personal estate, (g) and which are neither limited to the life of the testator or intestate, nor revoked by his death; as, in the case of a submission to arbitration containing no special clause to the contrary. (h) Therefore it was held, that a vendor having omitted to make out a good title within the stipulated time, and the vendee having died, the executor of the latter might sue for damage incurred by loss of interest on the deposit money, and the expense of investigating the title ;(i) and that an administrator might recover against an attorney for his negligence in investigating the title to premises purchased by the intestate, whereby an injury was occasioned to the personal estate. (k) So, debt lies at suit of an executor, for not setting out tithes;(1) against a tenant for double value, for holding over;(m) or for a devastavit by defendant, and administrator, in the lifetime of the testator, and after a judgment recovered by him.(n)

*131. But an action is not maintainable for a breach of promise [*102] of marriage to the deceased, where no special damage is alleged ;(0) and generally for injuries affecting the life or health of the deceased-such, for instance, as arise out of the unskilfulness of a medical practitioner, or the negligence of an attorney, or a coach proprietor-the personal representative cannot maintain an action without stating on the record some damage done to the personal estate of the deceased.(p) But where the breach of a contract relating to the person occasions a damage not to the person only, but also to the personal estate; as, for instance, if in the case of negligent carriage or cure, there was consequential damage, that the testator had expended his money, or had lost the profits of a business or the wages of labour for a time; or if there were a joint contract to carry both the person and the goods, and both were injured; it seems a true proposition, that in these cases the executor might sue for the breach of contract, and recover damages to the extent of the injury to the personal estate. (q)

132. Where the contract declared on was made with the testator or intestate, the personal representative may sue in that character;(r) but if

(g) 2 Cr. M. & R. 596, 597; Per Tindal, C. J., Orme v. Broughton, 10 Bing. 537, 1 Wms. Saund. 112, n. (1). As to rent, see ante, ss. 49, 50. A rent-charge granted pur autre vie goes to the grantee's personal representatives. Stat. 29 Car. 2, c. 3, s. 12; Bearpark v. Hutchinson, 7 Bing. 178;" and stat. 1 Vict. c. 26, s. 6.

(h) Cooper v. Johnson, 2 B. & Ald. 394; per Bayley, J., Rhodes v. Haigh, 2 B. & C. 346, 347; M'Dougal v. Robertson, 4 Bing. 435; Tyler v. Jones, 3 B. & C. 144 ;a Clarke v. Crofts, 4 Bing. 143.

(i) Orme v. Broughton, 10 Bing. 533.c (k) Knights v. Quarles, 2 B. & B. 102.d (1) Moreron's case, 1 Ventr. 30. (m) 4 Geo. 2, c. 28, s. 1.

(n) Berwick v. Andrews, 2 Ld. Raymond, 971.

(0) Chamberlain v. Williamson, 2 M. & S. 408; Beckham v. Drake, 8 M. & W. 854.* (p) Per Lord Ellenborough, C. J., delivering the judgment of the court; Chamberlain v. Williamson, 2 M. & S. 415, 416; Knights v. Quarles, 2 B. & B. 104 ;d Beckham v. Drake, 8 M. & W. 854.*

(9) Per Parke, B., delivering the judgment of the Court in Beckham v. Drake, 8 M. & W. 854, 855.*

(r) 1 Wms. Saund. 112, n. (1); Com. Dig. Pleader, (2 D. 1).

"Eng. Com. Law Reps. 20.

Id. 9. Id. 13. Id. 23.
*Reprinted at $2.50 per vol.

Id. 13. Id. 25. Id. 6,

made with *himself subsequently to the death of the testator or intes

tate, and the damages when recovered would be assets; as, where [*103] goods are ordered in the lifetime of the deceased, but delivered subsequently to his death,(s) or where work commenced by an intestate is completed by his administrator,(t) the personal representative may sue either as such or in his individual capacity ;(u) and an executor may sue and declare as executor on a bill indorsed to him in that character. (x) But the personal representative cannot, in the same declaration, join a demand in his own right with one in right of his testator or intestate; the rule being, that when the money recovered on each count will be assets, such counts may be joined, but not otherwise. (y)

133. If there are several executors, they have a joint and entire interest in the goods of the testator,(z) and *must therefore sue jointly.(a) And where one only of several executors has proved the will, all [*104]

must nevertheless join in an action brought in their representative character; for an executor derives his title, not from the probate, but from the will, and a probate granted to one executor enures to the benefit of all. b) Even where an executor has renounced probate, he must nevertheless join in suing for a debt due to the testator, for he is still at liberty whenever he pleases to accept of the executorship. (c) And though some of the executors are infants, they must join in an action, and may sue by attorney, for such of the executors as are of full age may appoint an attorney for those who are within age. (d)

133 a. Whether or not any particular contract was made with the executors as such or in their individual capacity, will depend of course upon the evidence adduced, and this will determine as to their joinder or nonjoinder; for if a contract were entered into with some only of the executors as principals and not as agents for all, they alone should sue and in their individual *character. (e) And although the circumstance of the money to be recovered on a contract being assets, authorizes the represen

[*104a]

(8) Marshall v. Broadhurst, 1 Cr. & J. 403. 405, recognized per Parke, B., 2 M. & W. 191; Werner v. Humphreys, 3 Scott, N. R., 226. Payment to the rightful executors is a good defence to an action for goods sold and delivered by an executor de son tort. Allen v. Hopkins, 13 M. & W. 94, recognizing Dickenson v. Naul, 4 B. & Ad. 638. (1) Edwards v. Grace, 2 M. & W. 190.*

(u) Per Curiam, Marshall v. Broadhurst, 1 Cr. & J. 405, 406; Webster v. Spencer, 3 B. & Ald. 360;f Grissell v. Robinson, 3 Bing. N. C. 10; Clarke v. Hougham, 2 B. & C. 149; Aspinall v. Wake, 10 Bing. 51; Lancefield v. Allen, 1 Bligh., N. S., 592. (x) King v. Thom, 1 T. R. 487, recognized per Tindal, C. J., 10 Bing. 55.i

(y) 2 Wms. Saund. 117, d. 5th ed.; Cowell v. Watts, East, 405; cited judgment 12 M. & W. 637; Bennett v. Verdun, 2 Ld. Raym. 841. See 9 & 10 Vict. c. 95, s. 66, in Appendix. (z) Co. Litt. 209, a., 209, b.

(a) Com. Dig. Administration, (B. 12), Pleader, (2 D. 1); per Park, J., Bassington v. Ault, 2 Bing. 178.k

(b) Per Bayley and Holroyd, Js., Webster v. Spencer, 3 B. & Ald. 363. 365; Walters v. Pfeil, 1 Mo. & Malk. 362; Brookes v. Stroud, 1 Salk. 3; 1 Wms. Saund. 291, g.; Per Buller, J., Munt v. Stokes, 4 T. R. 565.

(c) Creswick v. Woodhead, 5 Scott, N. R., 778. 780; 1 Wms. Saund. 291, g.; Wankford v. Wankford, 1 Salk. 307.

(d) Foxwist v. Tremaine, 2 Saund. R. 212; Smith v. Smith, Yelv. 130, supra, note (c) ; and 2 Bing. 178'; Rutland v. Rutland, Cro. Eliz. 377, note, ad finem.

(e) Brassington v. Ault, 2 Bing. 177; Turner v. Hardey, 9 M. & W. 770.

fEng. Com. Law Reps. 5. Id. 32. Id. 9. Id. 25. Id. 9. 'Id. 5.

*Reprinted at $2.50 per vol.

tatives, if they all contract, to treat it as such and recover in their representative character; yet it cannot alter the contract itself, and make those parties to it who really are not so. (f) Where therefore an action was brought by three plaintiffs as executrix and executors, to recover from the defendant money received by him under a written authority from two of the plaintiffs, and it appeared that these two alone had proved the will, the usual power being reserved to the co-executor; it was held that it was a question for the jury whether the contract, which was made with the defendant by the two acting executors, was so made on their own account only, they alone intending to administer the assets without their co-executor, or whether it was made on account of themselves and the other co-executor, or generally on account of the estate, with a view to the interference of the co-executor, in case he should choose to take a part in the management of it. That on the first supposition the action was not maintainable by the three, but that on either of the two latter it was rightly brought.(g) So where three executors ordered goods to be sold as the goods of their testator, and afterwards sued for the amount without styling themselves executors, and without joining a fourth executor who was named in the will, the plaintiffs were held entitled to recover; and it was observed by Best, C. J., that where *an action is brought expressly by executors, it is clear that [*1046] all must join, because they derive their interest under the will, not under the probate, and the right to sue is equal in all; but where the management is left with three, and those three enter into a contract, they may sue alone without styling themselves executors.(h)

134. It is clear that the title of an administrator, though it does not exist until the grant of administration, relates back to the time of the death of the intestate; and this doctrine of relation is available to enable the administrator to obtain the benefit of a contract intermediately made, by suing the contracting party. For instance, A. B. having sent a quantity of goods to his agent abroad for sale, died intestate, and after his death the defendants purchased the goods from the agent, who sold them for the benefit of the intestate's estate. Subsequently to the sale, the plaintiff took out letters of administration to the intestate, and sued the defendants in assumpsit for the price of the goods. Held, that the action was maintainable in conformity with the principle above stated, and with the rule of law, that when one means to act as agent for another, a subsequent ratification by that other is equivalent to a prior command.(i)

134 a. The rule above given as to the joinder of co-executors, applies equally to administrators ;(k) and, owing to the community of interest, no action lies by one personal *representative of either description, [*105] against his co-representative, the remedy being in equity;(h) though where a debtor made his creditor and another co-executors, and the creditor neither proved the will nor acted as executor, it was held, that an action lay

(g) Heath v. Chilton, 12 M. & W. 632.

(f) Judgment, 12 M. & W. 638. (h) Brassington v. Ault, 2 Bing. 177.m See Purdon v. Purdon, 10 M. & W. 562. (i) Foster v. Bates, 12 M. & W. 226, recognizing Tharpe v. Stallwood, 6 Scott, N. R. 715. (k) Com. Dig. Administration, (B. 12.)

(h) Moffatt v. Van Millingen, 2 B. & P. 124, n. (c); arg. Rawlinson v. Shaw, 3 T. R. 558.

"Eng. Com.Law Reps. 9.