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 legateed of a specific chattel, against an executor, after his assent to the bequest.

An acting executor having once received, and fully had 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-executor, 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 testator. 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,

or some memorandum or note thereof shall be in writing, " and signed by the party to be charged therewith, or some "other person thereunto by him lawfully authorized."

d Doe v. Guy, 3 East, 120.

f Perkinson v. Gilford, Cro. Car. 539, e Crosse v. Smith and another, 7 East, g Hambly v. Trott, Cowp. 371. 246.

(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 exe, cutors 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,

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 ith. 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 demurrer, 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 judgment. 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 administratrix, 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

h Rann v. Hughes, 7 T. R. 350. n. i Wain v. Warlters, 5 East, 10.

k Brigden v. Parks, 2 Bos. & Pull. 424. 1 Jennings v. Newman, 4 T. R. 347.

m Brigden v. Parks, 2 Bos. & Pul. 424. and Rose v. Bowler, 1 H. Bl. 108. n1 H. Bl. 108.

o Ibid.

p Secar v. Atkinson, 1 H, Bl. 102.

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 testator's 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 die", actions must be brought, not against the surviving executors and executors of deceased executors, but against surviving executors only.

If there are two or more administrators, they must all be made defendants. An executor de son tort must be declared against as a rightful executor.

Wilson v. Wigg, 10 East, 313.

r Bro. Exors. pl. 69.

s Swallow v. Emberson, 1 Lev. 161.

t Frescobaldi v. Kinaston, Str. 783.

u 4 Leon. 193. Bro. Exors. 99. Fitz. Abr. Exor. 22.

x Reg. 140. a. b.

y Alexander v. Lane, Yelv. 137.

IX. Of the Pleadings, and herein of the Right of Retainer-Evidence-Costs-Judgment.

AN executor may plead the same plea in barz, that his testator might have pleaded; as, in an action of assumpsit he may plead, that his testator did not undertake or promise; or in covenant, or debt on bond, that it is not the deed of the testator. So an executor may plead in bar, that he has fully administered all the goods and chattels which were of the deceased at the time of his death. This plea is termed a plea of plene administravit. In like manner an executor may plead an outstanding debt, as a judgment, in which plea it is not necessary for the executor to aver that the judgment was had for a true and just debt; for this shall be presumed. So where an executor pleaded that his testator entered into a bond conditioned for the payment of a sum of money at a day past, beyond which he had not assets; it was holden sufficient, although it was not averred that the bond was entered into for a true and just debt; for it shall be intended that it was. And the same intendment shall be made, where an executor or administrator pleads a bond debt due to himself and retainer.

The ancient way of pleading an outstanding bond was to set forth the bond only; but the modern way is to set forth the condition also.

When the day of payment, mentioned in the condition of the bond, is past in the life-time of the testator, the penalty is the legal debt; and although an executor, in pleading it as an outstanding debt, sets forth the condition of the bond, yet that will not deprive him of the advantage of covering the assets to the amount of the penalty. But when the day of payment is not arrived at the death of the testator, if the executor sets forth the condition, the assets can be recovered only to the amount of the sum mentioned in the condition; for the force of the bond is suspended until the condition is broken.

To an action of debt on bond for 300l. against defendant, as executor, he pleaded that the testator was bound in a statute for the same sum, and that he had assets to the

z Com. Dig. Pleader, (2 D. 8.) a 1 Lev. 200.

b Lake v. Raw, Carth. 8.

e Picard v. Brown, 6 T.R. 550.

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d Bank of England v. Morrice, Str. 1028. Hardw. C. J. delivering the opinion of the court.

e Philips v. Echard, Cro. Jae. 8.

amount of Sol. only, to satisfy that statute, which remained yet in force and not paid. On demurrer, it was objected, that it was not averred in the plea, that the statute was made for debt, and that the debt was not satisfied; for if it were for the performance of covenants, it was not reasonable that it should be a bar to debt on a bond already due, when, perhaps, the covenants would never be broken (42), in which case there would not be any cause of suit or extent thereon. But the court resolved, that the plea was good; for, as it was averred that the statute was in force, and the money not paid, it was good enough primâ facie, and it should be intended to be made for a just debt, until the contrary was shown.

An executor may plead an outstanding judgment recovered in an action of debt on a simple contract against the executor, although the executor might have reversed such judgment, since debt cannot be maintained against an executor on a simple contract.

If an action be brought against several administrators, they may plead an outstanding judgment recovered against one of the defendants; for a recovery against one administrator shall bind him and his companions.

After the commencement of an action, an executor cánnot pay another creditor before such other creditor has recovered judgment, but the executor may confess a judgment for the damages laid in the declaration, without ascertaining those damages by writ of inquiry, provided they do not exceed the real debt. If they do, the plaintiff may reply that such judgment was not for a true and just debt.

An executor may confess a judgment to a creditor in equal degree with the plaintiff, pending the action, and plead it in bar. But if a plea of judgment recovered on a simple contract, be pleaded by an executor to a debt on bond, it must be averred, that such recovery was had before notice of the bond debt*.

An executor may plead, puis darrein continuance, unre

f Palmer v. Lawson, 1 Lev. 200. Further v. Further, Cro. Eliz. (471.) b Waring v. Danvers, 1 P. Wms. 295. 10 Mod. 496. 3 P. Wins. 401.

i Waring v. Danvers, 1 P. Wms. 295. Morrice v. Bank of England, Ca. Temp. Talb. 225. S. P.

k Sawyer v. Mercer, 1 T. R. 690.

(42) It was agreed by Fenner, Gawdy, and Yelverton, Justices, that a statute for performance of covenants was not a bar in debt on bond, if none of the covenants were broken.