appropriated(i) towards payment of the rent, and cannot lawfully be applied for any other purpose; and in such cases the special matter(j) must be pleaded, shewing that the defendant holds only as executor, and that the premises yield no profit(k), and praying that he should only be charged in his representative character, and not as assignee; or if the premises yield any profit, however small, the demand should be acknowledged to that extent, and the plea should be restrained to the residue.

Where an administrator of a lessee for years was sued as assignee of the term for rent incurred due in his own time, it appeared() in evidence that one Thomas Cook demised for twenty-one years at the rent of £148, and the lessee covenanted to pay the rent and keep the premises in repair; the lessee, in consideration of a fine of £450, underlet to Ebsworth for twelve years, from March, 1827, at the rent of £210. The lessee died intestate in December, 1831, and the defendant, as his administrator, paid all rent to Michaelmas, 1831. If the premises had been repaired pursuant to the covenant in the original lease, they would have produced the rent, but the undertenant becoming insolvent, and the premises being dilapidated, the administrator offered to surrender his estate in the concerns. Upon this statement of facts, it was ruled that the offer of surrender was insufficient, as the term was subject to the underlease; that the non-payment of rent by the underlessee did not affect the value of the premises, as it only shewed that the value had not been obtained; and that the administrator was precluded from insisting that the holding was not worth the rent reserved, when it might have been preserved of that value, and might at any time be restored to that value by the administrator's performing the duty cast on him under the covenant to repair.

In covenant against an administrator of demised premises for not repairing, it was decided(m) that a plea, alleging the premises did not yield any profit, and had not been of any value, and averring that the defendant was only administrator, that he had fully administered and had offered to surrender before any of the breaches occurred, could not be supported; and Tindal, C. J., said, that the law, as it applies to personal representatives with respect to non-payment of rent, does not stand on the same footing as the law which binds them to repair, be

(i) Buckley v. Pirk, 1 Salk. 316. (j) Billinghurst v. Spearman, 1 Salk. 297; Holt, 306, S. C.

(k) Rubery v. Stevens, 4 B. & Adol. 241; 1 Nev. & Mann. 182, S. C.

(1) Hornidge v. Wilson, 3 P. & Dav.

641; 11 Ad. & Ell. 645; and see Thacker v. Wilson, 3 Adol. & Ell. 142; 4 Nev. & M. 659, S. C.

(m) Tremeere v. Morison, 1 Bing. N. C. 89; 4 Moo. & Sc. 607, S. C.

cause rent is received by personal representatives, not so much in the light of assets as a profit of the land which is to be handed over to the landlord in satisfaction or diminution of arrears that may be due, and no such reason is applicable to the covenant for repairs; however, an offer to surrender the lease(n) promptly made, will, it is said, assist the party in answering breaches of covenant for not repairing, arising after the offer was made, though it would not cover any preceding default in that respect.

94. An action does not lie against personal representatives upon an implied covenant, which is not broken(o) until after the death of the testator or intestate. A tenant for life, having demised by indenture for years, without any express covenant for quiet enjoyment, the lessee, after the lessor's death, and before the expiration of the term, was evicted by the remainder-man, and it was decided(p) that an action was not maintainable by the lessee in respect of such eviction on the implied covenant against the executors of tenant for life: the lessor, and upon his decease his personal representatives, are responsible for breach of an implied covenant, if it be violated(y) during the term, either by the lessor himself or in his life-time by any person deriving from him, or if the lessor had no title, and the lessee could not lawfully (r) enter.

95. If a covenant expressly binding the heirs of a lessee or covenantor be broken either in the life-time(s) of the lessee or at any time, during the term, after(t) his death, the heir of the lessee or covenantor is chargeable to the extent of the real estate descended, though such heir never took any interest in the demised premises; but the liability of the heir is confined to the value of the land descended, and after(u) paying debts of his ancestor to that amount, the heir is entitled to hold the real assets discharged.

By the common law, the claim of any specialty creditor of the ancestor against the heir for the value of lands descended, was utterly defeated by a bona fide alienation before action brought, as the heir might plead(v) "riens per descent" at the time of the commencement

(n) Reid v. Ld. Tenterden, 4 Tyrw. 111, by Bayley, Baron.

(0) Swan v. Stransham, 3 Dyer, 257, A.; Searles v. Swayne, Benloe, 150; Moor, 74; 1 Anders. 12, pl. 25; Bragg v. Wiseman, I Brownl. 22; Cheiney v. Langley, 1 Leon. 179; Cro. Eliz. 157; 6 Vin. Abr. E. pl. 7; Com. Dig. Covenant, C. 1; Bedford v. Hall, Owen, 105. (p) Adams v. Gibney, 6 Bing. 656; 4 Moo. & P. 491.

(9) Nokes' case, 4 Rep. 81.

(r) Stile v. Herring, Cro. Jac. 73; 1 Ro. Abr. 520, Covenant, G. pl. 1; Holder v. Taylor, Hob. 12; 1 Ro. Abr. 520, Covenant, G. pl. 3.

(s) Farley v. Briant, 5 Nev. & M. 46; 3 Ad. & Ell. 839; Dyke v. Sweeting, Willes, 585.

(t) 14 Vin. Abr. 238, Heir, A. pl. 1. (u) Buckley v. Nightingale, 1 Stra.

665.

(v) 1 Selw. N. P. 596.

of the suit, but in Equity the heir(w) was held answerable for the value of the lands aliened. By the Irish Statute(x), 4 Anne, c. 5, it is enacted, that where any heir at law shall be liable to pay the debt of his ancestor in regard of any lands, tenements, or hereditaments descending to him, and shall sell, alien, or make over the same before action brought, that such heir shall be answerable for such debt, in an action of debt, to the value of the land so by him sold, aliened, or made

over.

The effect of this enactment was to render the heir liable, although he aliened, but no remedy was given against the land, nor was the land chargeable in the hands of the alienee, though the heir was made personally liable for its value. At common law the demands of a specialty creditor were effectually defeated by the debtor's devise of his freehold estates; but by the Irish Statute(y), 4 Anne, c. 5, s. 2, an action of debt was given upon specialties in which the heir was bound, against the heir and devisee jointly, and it was thereby provided(~), that alienation of the land by the devisee, before action brought, should not defeat the creditor's remedy.

96. The preceding Statute did not give the specialty creditor any specific lien on the estates of his debtor, nor enable the creditor to fol low(a) the lands into the hands of a party who purchased bonâ fide from the heir or devisee, but the heir, as well as the devisee, continued personally responsible for the debt after they had parted with the estate, in respect of which they respectively became chargeable.

Thomas Timbrell, the elder, being a debtor by covenant binding his heirs, devised certain tenements to his son in fee, who, about three years after his father's death, settled the devised(b) estate, along with others, upon his marriage, in order to make a provision for his intended wife and the issue of the marriage: a bill was filed about ten years after the testator's death for the purpose of carrying the trusts of his will into execution, and that his real and personal estates might be applied in payment of his debts; the son became bankrupt, and died pending the suit, leaving a widow and children, and it was decided, that the tenements devised could not, as against the widow and chil dren of the deceased son, be sold for payment of the testator's debts, as neither the common nor statute law created any specific charge on

(w) Coleman v. Winch, 1 P. Wms. 777.

(r) 4 Anne, c. 5, s. 4, Irish; 3 & 4 Will. & Mary, c. 14, s. 5, English.

(y) 4 Anne, c. 5, s. 2, Irish; 3 & 4 Will. & Mary, c. 14, s. 3, English.

(z) 4 Anne, c. 5, s. 6, Irish; 3 & 4 Will. & Mary, c. 14, s. 7, English. (a) Mathews v. Jones, 2 Anstr. 506. (b) Spackman v. Timbrell, 8 Simons,

253.

real assets descended or devised for debts of the ancestor or testator, but merely rendered the heir and devisee respectively answerable personally for the value of the assets, and that the widow and children of the bankrupt were purchasers, in consideration of marriage, of the lands conveyed by the settlor for their use, though the devisee and heir, by the conveyance, became personally liable to the creditors for the amount in value of the lands conveyed.

The Irish Statute(c), 4 Anne, c. 5, is repealed by the Statute, 11 Geo. IV. and 1 Will. IV. c. 47, except as to persons who died before the 16th of July, 1830, and the preceding clauses of the Irish Act are re-enacted, giving the additional remedy by action of covenant to specialty creditors.

97. An action of debt was the only remedy given by the Irish Statute(d) 4 Anne, c. 5, against the heir(e) or devisee, and, therefore, if a vendor devised real estates of which he died seised, a person who purchased lands from the testator in his life-time, had no remedy against the devised estates for breach of any covenant for title contained in his purchase deed: no action was maintainable under this Statute against a devisee of real estate for any specialty debt(ƒ) which did not accrue due in the testator's life-time, nor for any demand, by reason of a contingent liability to damages, arising on a breach of covenant committed after the testator's decease: an action of debt for non-payment of rent reserved by indenture of lease, which accrued due after the death of the lessee, cannot be maintained after the expiration of the lease, under this Statute, against the devisee of the lessee, and as the Statute 11 Geo. IV. and 1 Will. IV. c. 47(g), only extends the provisions of the former Statute, by giving an action of covenant, it seems evident, that the latter Act must receive a similar interpretation(h).

By the Statute(i) 3 & 4 Will. IV. c. 104, it is enacted, that when any person shall die seised of, or entitled to any estate or interest in lands, tenements, or hereditaments, corporeal or incorporeal, or other real estate, which he shall not by his will have charged with his debts, those estates shall be assets to be administered in courts of equity for

(c) 4 Anne, c. 5, Irish, repealed by Statute, 11 Geo. IV. and 1 Will. IV. c. 47, by which the 2nd, 4th, and 6th sections of the Irish Statute are re-enacted. (d) 4 Anne, c. 5, Irish; 3 & 4 Will. and Mary, c. 14, English.

(e) Wilson v. Knubley, 7 East, 128. (f) Farley v. Briant, 3 Ad. & Ellis,

839; 5 Nev. & Mann, 42, S. C.

(g) 11 Geo. IV. and I Will. IV. C. 47, Eng. and Irish.

(h) See Farley v. Briant, 3 Ad. & Ell. 846.

(i) 3 & 4 Will. IV. c. 104, Eng. and Irish; 11 Geo. IV. and 1 Will. IV. c. 47, s. 9, Eng. and Irish.

payment of his debts, as well by simple contract as by specialty: and that his heir or devisee shall be liable to all the same suits in equity, by any of his creditors, whether by simple contract or by specialty, as they were, before the passing of the Act, liable to, at the suit of creditors by specialty. It may be reasonably presumed, that this Act will be construed (j) in the same manner as the preceding Statutes.

98. Heirs and devisees seised of the rent and reversion of demised premises, or in whom leasehold interests descendible to heirs become vested, by descent or devise, may be sued(k) as assignees of the reversion, or as assignees of the estate of the lessee, and are liable for breaches of covenant running with the estate in the land during their enjoyment of the premises descended or devised respectively.

99. Covenants in leases running with the land for the benefit of the reversion, are real covenants(7), which descend to the heir of the lessor, or pass to the assignee of his estate: according to the old(m) authorities, personal representatives were entitled to sue upon all covenants broken(n) in their testator's life-time, but this rule has been qualified by later decisions, which establish, that although formal breaches of real covenants occur in the ancestor's life-time, yet if the substantial damage has taken place subsequently to his death, the real(o), and not the personal representatives shall recover damages for the loss or injury.

Executors, however, may sue on a covenant, where there has been an ultimate(p) breach in the testator's life-time: in an action of covenant against a lessee for felling timber trees during the lessor's lifetime, which were excepted out of the demise, it was decided that the covenant(q) being merely collateral, and not running with the land, the personal representatives of the lessor were the proper parties to maintain the suit: and even if the covenant had not been broken until after the lessor's death, that neither the heir, nor the devisee of the land which produced the excepted trees, could sue for the breach, because the covenant being collateral, an action for its breach would only lie at the suit of the executor. Personal representatives are entitled

(j) See Spackman v. Timbrell, 8 Simons, 253; 3 Sugden's Vendors, 153.

(k) Derisley v. Custance, 4 T. R. 75. (1) Kingdon v. Nottle, 1 M. & Selw. 355-365; Wotton v. Cook, 1 Anders. 53, pl. 132; Jenk. 241; 6 Cent. Case, 24; 3 Dyer, 337, B.; Lougher v. Williams, 2 Lev. 92.

(m) Prior to the accession of his late Majesty George the Third.

(n) Le Mason v. Dixon, Poph. 189; Latch. 167; Noy. 87, S. C.; Morley v.

Polhill, 2 Ventr. 56; 3 Salk. 109; Smith v. Simonds, Comberb. 64; Lucy v. Levington, 2 Lev. 26; 1 Ventr. 176.

(0) Kingdon v. Nottle, 1 M. & Selw. 355; 4 M. & Selw. 53; King v. Jones, 5 Taunt. 418; 1 Marsh, 107: Jones . King, 4 M. & Selw. 188, in error.

(p) Kingdon v. Nottle, 4 Maule & Selw. 57.

(9) Raymond v. Fitch, 5 Tyrw. 985; 2 Cro. M. & Rosc. 588, S. C.