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at his suit against the acting executor, for a demand on the testator.(i) On the death of a co-executor, the surviving executors must sue without joining the representatives of the deceased executor, their interest having been joint ;(k) and it seems that a surviving administrator may sue without procuring a new grant of letters of administration.(!)

135. The power of an executor being founded upon the special confidence and actual appointment of the deceased, such executor is, therefore, allowed to transmit that power to another, in whom he has equal confidence ; and consequently the executor of A.'s executor, if the latter has proved the will,(m) is to all intents and purposes the executor and representative of A. bimself, and may sue accordingly ;(n) but the executor of A.'s administrator, or the administrator of A.'s executor, is not the representative of A., for an administrator is merely the officer of the ordinary prescribed to *him by act of Parliament, (o) in whom the deceased has reposed no trust at all.(P) Therefore on the death of A.'s administrator, or

[*106] of A.'s executor, if intestate, or whenever the course of representation from executor to executor is interrupted by any one administration, it is necessary that an administrator de bonis non should be appointed, who is the only legal personal representative of the deceased, and can alone sue in respect of his personal property.(9)

136. Where a limited or special administration is granted-as, during the lunacy or minority (r) of the executor or next of kin, or during the residence of the executor out of the jurisdiction of the courts,() or pendente lite-any action in respect of the testator's personalty, must be brought in the name of the party to whom such administration is granted, during the period that it remains in force.(1) And where K. being left executor, M., as his attorney, obtained letters of administration to the testator's effects with the will annexed, for the *benefit of K., who never took out probate ; and K. died having appointed an executor; and S, there

[*107] upon took out administration with the will of the first testator annexed, and also administration with the will of K. annexed, until K.'s executor should obtain probate : it was held that arrears of interest accruing to the estate of the first testator in K.'s lifetime must be recovered by M. ; but that S. might recover such as accrued after he had obtained administration ; for M. was the legal representative of the original testator during K.'s life, or, at all events, until he himself took out probate, which he never did ; and, after K.'s death, the grant of administration to S. was good.(u)

(i) Rawlinson v. Shaw, 3 T. R. 557. (k) Ante, ss. 9. 23. (l; Per Sir J. Strange, M. R., Jacomb v. Harwood, 2 Ves. 268.

(m) Hayton v. Wolfe, Cro. Jac. 614; Per Holt, C. J., Wankford v. Wankford, 1 Salk. 308, 309.

(n) Stat. 25 Edw. 3, st. 5, c. 5. (0) Stat. 31 Edw. 3, st. 1, c. 11.

(p) 2 Bla. Com. 506. (9) 2 Bla. Com. 506; Elliott v. Kemp, 7 M. & W. 306. In assumpsit by an administrator de bonis non, the promise may be laid to have been made to the first administrator. Hirst v. Smith, 7 T. R. 182. See Catherweod v. Chabaud, 1 B. & C. 150.n

(r) Stat. 38 Geo. 3, c. 87, ss. 6,7; Freke v. Thomas, 1 Salk. 39. (8) Stat. 38 Geo. 3, c. 87, s. 1.

(t) See Slater v. May, 2 Lord Raymond, 1071, and cases there cited; Taynton v. Han. nay, 3 B. & P. 26, where it was held, (diss. Lord Alvanley, C. J.), that an administration durante absentiâ of an executor was not rendered void, but only voidable, by the death of such executor. (u) Suwerkrop v. Day, 8 A. & E. 624. 632.o

"Eng. Com. Law Reps. 8. oId. 35.

[*108]

PART II.

DEFENDANTS IN ACTIONS EX CONTRACTU.

CHAPTER I.

GENERAL RULES.

Distinction between the legal and equitable Interest, ss. 137, 138. Who should be sued

on a Contract under Seal, ss. 139, 140. Joinder of Parties liable on a Contract under Seal, ss. 141-144. Who should be sued after Assignment of Land, ss. 145–147. After Death of the Covenantor or Obligor, ss. 148–152. Who should be sued on a Simple Contract, s. 153. Joinder of Parties liable on a Simple Contract, ss. 154–159. Assignment of Liability on a Simple Contract, s. 160.

137. Courts of equity, generally speaking, require that all persons legally or beneficially interested in the subject matter of a suit should be made parties to it; but courts of law consider only the parties directly and immediately interested, and whose interests are of a strictly legal nature.(a) Hence, as we have already seen, a trustee cannot be sued at law by his cestui que trust,(6) unless after giving a written acknowledgment that he [*109]

holds a specific sum for the latter,(c) or, after the trust is ended,

and the trustee has stated an account or has admitted that he holds a sum in his hands payable to the cestui que trust absolutely, in which case he becomes, with respect to that sum, a debtor not properly a trustee ; and an action for money had and received will be maintainable against him ; but, in general, where money has been originally received by a party as trustee, the only remedy available to the cestui que trust whilst the trust continues open, is by bill in equity.(c)

138. There are, however, some cases in which courts of law will take notice of trusts; as, for instance, where a bankrupt is a mere trustee,(d) and they will, when requisite, recognize the difference between a legal and a beneficial interest ;(e) but, as a general rule, inatter of equity affords no defence against a claim by the party legally entitled.f)

139. The party to be sued on an instrument under seal, as on an indenture or bond, is pointed out by the express terms of the deed; and, if a man

(a) Story, Eq. Pl. ss. 76, 77. (b) Ante, s. 2, Allen v. Imlett, Holt, N. P. C. 641.P See Allen v. Impett, 8 Taunt. 263 ;9 Mileham v. Eicke, 3 M. & W. 407.* (c) Remon v. Hayward, 2 A. & E. 666.5

(c) Bartlett v. Dimond, 14 M. & W. 47. 56, where it is said that "the case of Allen 6. Impett, (ante (b)), seems at least questionable.” Pardoe v. Price, 13 M. & W. 282;* Roper v. Holland, 3 A. & E. 99. See also Edwards v. Bates, 8 Scott N. R. 406; Case v. Roberts, Holt, N. P. C. 500; Randoll v. Bell, 1 M. & S. 714.

(d) Forster v. Wilson, 12 M. & W. 191;per Parke, B., 2 Cr. & M. 602. (e) Britten v. Perrott, 2 Cr. & M. 602.

(1) Tucker v. Tucker, 4 B. & Ad 745. 751,“ per Littledale, J., and Parke, J., denying the authority of Bottomley v. Brook, cited, 1 T. R. 621, and Rudge v. Birch, cited, Id. 622.

PEng. Com. Law Reps. 3. Id. 4. Id. 29. Id. 30. tId. 24.

*Reprinted by T. & J. W. J. at $2.50 per vol.

covenants for himself and his heirs and, under his own hand and seal, for the act of another, he shall be bound by his covenant, though he describe himself in the deed as *covenanting for and on the part and behalf of such other person.(8)

[*110] 140. It seems clear that signing is not essential to the validity of a deed at common law, and that it is, therefore, only requisite when expressly required by statute ; (h) but whether it is necessary, by the Statute of Frauds, that a lease under seal should also be signed is a question which remains yet undecided ;(i) and, although one, who is neither expressed to be a party to a deed inter partes, nor executes it, cannot be sued thereon,(k) yet one, who is not a party to a deed, may covenant with another who is a party, and thereby oblige himself by sealing the deed ;(l) and one, who executes a deed, has been held liable, although neither a party to it nor even expressly named therein.(m) So, if a lease(n) be made to A. and B. by indenture, which A. executes, and B. agrees *10 the lease and enters, but does not seal, it has been laid down that the latter will be [*111] liable for breach of covenants contained in it ;(P) but this position does not seem warranted by the authorities cited in support of it.(9) However, covenant lies on letters-patent, though there is no counterpart executed by the lessee, who is to be charged,(r) for when he takes by the patent he consents to the covenants therein contained.

141. Where a specialty contract or obligation is entered into by several, it must be either joint, joint and several, or several.(s) If expressly joint, all parties chargeable must be made defendants in an 'action for the breach of such contract ;(t) but where the contract is in terms joint and several, the covenantee may elect to sue either one or all of the covenantors, notwithstanding their legal interest in the subject-matter of the covenant be joint.(u)

(@) Appleton v. Binks, 5 East, 148. See Wilks v. Back, 2 East, 142; Frontin v. Small, 2 Lord Raym. 1418; White v. Cuyler, 6 T. R. 176.

(1) Bac. Ab. Obligations, (C.); Com. Dig. Faits, (C. 1); Finch's Law, 108; 2 Bla. Com. 305, 306. See per Tindal, C. J., Toms v. Cuming, 14 L. J., N. S., C. P. 68; Hyde v. Johnson, 2 B. N. C. 776 ;u Pitts v. Beckett, 13 M. & W.743; Clark v. Alexander, 8 Scott, N. R. 163.

(i) Cooch v. Goodman, 2 Q. B. 580,7 cited per Patteson, J., 4 Q. B. 376.9 Aveline v. Whisson, 4 M. & Gr. 801.a

(k) Per Tindal, C. J., delivering the judgment of the court, Bushell v. Beavan, 1 Bing. N. C. 120.5

(l, Per Holt, C. J., Salter v. Kidgley, Carth. 76, 77.

(m) Salter v. Kidgley, Carth. 76 ; Nurse v. Frampton, 1 Lord Raym. 28; S. C. 1 Salk. 214; but in the case of an indenture, see per Parke, B., 9 M. & W.95; Skidmore v. Vaudstevan, Cro. Eliz, 56; and see Co. Litt. 230, b.

(n) See per Coleridge, J., Doe d. Marlow v. Wiggins, 4 Q. B. 378,9 as to a lease not signed by both parties.

(p) Co. Litt. 231, a.; and Mr. Butler's note, Id. 230, b., n. (1); Per Abbott, C. J., Bur. nett v. Lynch, 5 B. & C. 602.C

(9) See this subject discussed at length, Platt on Covenants, 10 et seq.

() Brett v. Cumberland, Cro. Jac. 399. 521 ; Ewre v. Strickland, Id. 240; per Twisden, J., Wootton v. Hele, 1 Mod. 291, 292. See Platt on Cov. 10.

(8) See Platt on Cov. 117–121.

(t) Cabell v. Vanghan, 1 Wms. Saund. 291, b. n. (4); and as to the mode of taking ad. vantage of the non-joinder of a necessary defendant, Id. et seq. Eccleston v. Clipsham, Id. 154, n. (1); and if one joint covenantor does not execute, see Bidwell v. Lethbridge, 1 Barnard, 235.

(u) Eccleston v. Clipsham, 1 Wms. Saund. 154, n. (1). See the rule as to joint and several covenantees, ante, s. 7.

uEng. Com. Law Reps. 29. *Id. 2. Id. 45. "Id. 43. bid. 27. Id. 12.

142. Therefore, if A. lets land to B. and C., who *covenant [*112]

jointly and severally with the lessor for payment of rent, or the like, the latter may bring an action against either of the covenantors; for they are sureties for the due performance of the covenants, and it is as competent for each of them to covenant for the other, as for a stranger to covenant for both, which is an usual thing :(x) and so, if two covenant for themselves, and for each other, to receive and duly pay over to plaintiff the rents of his estate.(y) Where defendant and an infant granted an annuity, and jointly and severally covenanted for its due payment, it was held, that the infancy of the grantor did not exonerate defendant from his separate contract, although, by by stat. 53 Geo. 3, c. 141, s. 8, the indenture was void as to the infant.(2)

143. But on a joint and several covenant(a) or bond, the plaintiff must elect to proceed either as if the contract or obligatory part of the instrument were joint, or as if it were several ; so that the parties chargeable must be sued jointly or individually ;(b) and in the former case, the personal representatives of a deceased contracting party must not be joined, nor need the

survivors be declared against as such.(c) And there is this *dis[*113]

tinction between a joint and a joint and several bond ; that if two are jointly bound, and one dies, the survivor must be sued, and an action cannot be maintained against the personal representative of the deceased; but if bound jointly and severally, it is otherwise, for the obligee may sue either the executor or the survivor.(d) But the discharge of one obligor, or satisfaction made by him, discharges his co-obligor, for there is but one duty extending to both ;(e) and if one of three joint and several covenantors become bankrupt, and obtain his certificate, the covenantee may proceed against the other two.(g)

144. If the contract be several in its terms, each covenantor or obligor is, of course, separately liable, and must be separately sued; for at law, as well as (generally speaking) in equity, the courts will not take cognizance of distinct and separate clairns or liabilities of different persons in one suit, though standing in the same relative situations.(h) And where an action

was brought against two parties on an implied covenant arising *out [*114]

of a demise, but it appeared that in point of law one of the parties

(2) Enys v. Donnithorne, 2 Burr. 1190. 1196. (y) Lilly v. Hodges, 8 Mod. 166; S. C., Stra. 553. (z) Gillow v. Lillie, 1 Bing. N. C. 695.1 (a) See Platt on Covenants, 134, 135. (b) Cabell v. Vaughan, 1 Wms. Saund. 291, e.; Com. Dig. Obligation, (G.); Bac. Ab. Obligations, (D. 4), Covenant, (D.); Per Buller, J., Streatfield v. Halliday, 3 T. R. 782. As to staying proceedings in actions against several defendants, see Chitt. Arch. Pr. 7th ed. 993; Anderson v. Towgood, 1 A. & E., N. S., 245..

(c) Bac Ab. Obligations, (D. 4);1 Wms. Saund, 153, n. (1); Enys v. Donnithorne, 2 Burr. 1196; Whelpdale's case, 5 Rep. 119 ; and see this subject fully considered, 1 Wms. Saund. 291 a, n. (4).

(d) Towers v. Moor, 2 Vern. 99: May v. Woodward, Freem. 248; Enys v. Donnithorne, 3 Burr, 1190.

(e) Per Eyre, C. J., Cheethami v. Ward, 1 B. & P. 633; Per Lord Denman, C. J., Nicholson v. Revill, 4 A. & E. 682, 683 ;f 2 Wms. Saund. 48, a, note ; Brooks v. Stuart, 9 A. & E. 854.8 As to whether a bond be joint or several, see Collins v. Prosser, 1 B. & C. 682 ;h Robinson v. Walker, 1 Salk. 393; Sayer v. Clayton, 1 Lutw. 695.

(g) Baxter v. Nichols, 4 Taunt. 90; post, s. 156. (h) Birkley v. Presgrave, 1 East, 226, 227.

Eng. Com. Law Reps. 27. Id. 41. fid. 31. Id. 36. bId. 8.

demised, and the other who had only an equitable interest, confirmed ; it was held, that the party making the demise, and legally entitled, should have been sued alone.(i)

145. The weight of authority seems to shew, that the assignee of land in other cases than between landlord and tenant, is not, even though expressly named, bound by the covenants entered into by the assignor;(k) and the reason alleged for this rule is, “ the inconvenience which would result if parties were allowed to invent new modes of holding and enjoying real property, and to impress upon their lands and tenements a peculiar character, which should follow them into all hands, however remote. The difference is obviously very great between such a case as this and the case of covenants in a lease, whereby the demised premises are affected with certain rights in favour of the lessor. The lessor or his assignees continue in the reversion while the term lasts : the estate is not out of them, though the possession is in the lessee or his assigns. It is not at all inconsistent with the nature of property, that certain things should be reserved to the reversioner all the while the term continues; it is only something taken out of the demise ; some exception to the temporary surrender of the enjoyment. It is only that they retain more or less partially the use of what was wholly used by them *before the demise, and what will again be wholly used by them when that demise is at an end.(1).

[*115] 146. Where lands were conveyed to A. in fee, to the use of B.'s appointee, and in default of appointment to the use of B. in fee, who covenanted for himself, his heirs and assigns, to pay a certain fee-farm rent to the plaintiffs, and A. and B. conveyed to C., by way of appointment : it was held, that defendant, the heir, devisee, and executor of C., was not liable in covenant as B.'s assignee ; for C. came in under the original conveyance which created the power of appointment; and a person taking under a power, takes under him who created the power, and not under him who executes it.(m)

147. From the rule just stated,(n) it should seem, that if the grantor of a rent-charge covenant for due payment of the same, with the usual clause of re-entry in case of default, and after assignment of the land the rent fall in arrear, the assignee and terretenant would not be liable in an action of covenant ; although, of course, the grantee of the rent has his remedy by distress against the land.(0)

*148. Where a person by bond, covenant (whether real or personal,) or other specialty, binds himself and his heirs, the heir(p) and devisee' [*116]

(i) Smith v. Pocklington, 1 Cr. & J. 445.

(k) See this subject discussed at length, and the authorities cited and considered, Smith's Leading Cases, Vol. I., note to Spencer's case ; Mayor of Carlisle v. Blamire, 8 East, 487.

(1) Per Lord Brougham, C., in Keppel v. Bailey, 2 Myl. & K. 517. (m) Roach.v. Wadham, 6 East, 289; Doe d. Wigan v. Jones, 10 B. & C. 459. 468, where it was held that an elegit issued by a judgment creditor, was defeated by a deed of appointment executed subsequently to the judgment in pursuance of a power created by a conveyance anterior threreto.

(n) Sect. 145. (0) Brewster v. Kitchell, 12 Mod. 166, and the remarks on this case in Smith's Leading Cases, Vol. I., note to Spencer's case.

(p) When the heir is also devisee he now takes in the latter character, 3 & 4 W. 4, c. 106, 8. 3.

Eng. Com. Law Reps. 21.

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