well as taking and carrying away the goods of their testator or the plaintiff intestate. 8. MILLER V. UMBE HOWER, 10 Sergt. & Rawle's Penn. Rep. 31; so also, tres ing, &c. But an exec spect to an An executor has no right to an action for an injury to the per- utor has no son of the testator; as for a battery, imprisonment, or the like; right of ac nor for a breach of promise of marriage, where no special da- tion in re mage is alleged; but trespass de bonis asportutis, and trover, and injury toth replevin may be commenced and maintained by the executor or the testator. administrator of the owner of goods against a tortfeasor. See No. 1. 7. person of 9. HOLMES V. MOORE, 5 Pickg. Mass. Rep. 257; 1 Little's Ky. Rep. 169. Case for di verting wa with the per son. Case for diverting a water course dies with the person. Putnam, J. At common law, before the stat. of Edw. 4. c. 7. ter, dies no action could be maintained by an executor for a tort done to the person or property, real or personal of the testator. That st. gave executor an action of trespass for goods carried away in the life-time of the testator; and by an equitable construction it has been held to give a remedy for any wrong to personal property; and this construction has been adopted in Massachusetts. But injuries to the person and freehold remains as at common law. 10. BAKER V. BAKER, Feb. T. 1826, 5 Cowen's N. Y. Rep. 267; maintain trespass for An executor or administrator may maintain trespass for an But he may injury to personal property committed after the death of the intestate, and before administration granted. If the property is an injury to described as being the property of the deceased, it is well after verdict. So the executor may declare in his own name for a conversion of the goods of the testator, committed since his But in such case if the plaintiff fail, he must pay costs. decease. personal property commiticd af.or the death of the And ifan ad intestate. ministrator sues in his individual capacity, But in the case cited from South Carolina, it was held that his letters of where the administrator sues in his individual capacity, his adadministra ministration forms part of his title; and must be proved, although part of his there be no oyer prayed, or plea of plene administravit. tion form title; and must be pro ved. When the contract ceased, the (B) ACTIONS BY EXECUTORS, &C. IN CONTRACTS, &c. 1. KLINE V. GUTHART, 2 Penn. Rep. 490. When an action is on a contract with the deceased, the action was made by an executor can be maintained only on the title of the testawith the de tor or intestate, and consequently only in a representative charaction by acter; but when the contract, express or implied, has been created or sprung since his death, it can be maintained only in title of the his own right; and the naming himself executor will not alter its character.* the execu tor is on the deceased. An execu 2. GOULD'S PLEAD. p. 217. It is a rule that distinct counts of action cannot be joined, unfor may not less they accrue in one and the same right. As, an executor may join dis tinct causes not join a promise to himself with one to his testator; and the of action, as reason is that the causes require different judgments both in resto himself pect to the damages and costs; 3 B. & P. 7. a promise and also to the testator. Ren's accru ing during So, in a declaration by an executor or administrator, if the avails of a recovery upon the several counts would be assets, they may well be joined. But a demand against an executor or administrator personally should not be joined with another against him in his capacity of executor, as such.† 3. VAN RENSSELAER'S EX'RS V. PLATNER'S EX'RS, 2 Johns. N. Y. * A person who signs an instrument" as executor," of a deceased person becomes personally liable thereon; 2 B. & B. 460. But a party who accepts bills drawn on him by persons "as executors," admit their right to assume that charac ter, and that the debt was due to them in that capacity; Aspinall v. Wake, 10 Bing, R. 51, where the executors continued to carry on the business of the testator, and drew bills, as executors, for goods sold defendant; Held, that plaintiffs might suc, as executors for the price of such goods. + Upon a count laying an account stated between plaintiff and defendant, as executor, concerning money due to the latter in his representative character, the plaintiff, if he fail, is liable to costs; otherwise, if it be stated that the money was due in his representative character; 1 Bing. 249; 1 Chit. Pl. p. 185. the testator accrued during the life of the testator; but not for rent afterwards the life of becoming due; because in the latter case the rents belong to the may be re heirs and not to the executor.* 4. BROOKS V. FLOYD, 2 M'Cord's Rep. 364. S. P. AYRES V. To- covered by the execu tor. The execu tor may cause of The executor may also in right of the testator maintain actions, the cause of which accrued after the testators death; as in maintain an action the case a debt on any species of contract made with him become payable; or a personal covenant entered into with the testator which ac be broken; or his goods be taken; in such cases, the executor, testator's in his representative capacity, is entitled to a remedy by action.f 5. CARSON V. M'FARLAND, Oct. T. 1828, 2 Rawle 118. crued after death. An adminis That a creditor who had paid money within the year on ac-trator who has paid a count of a just debt, cannot recover it back on the ground of a just debt deficiency of assets. within the year cannot back on the Huston, J. In England, after some variance of decision, it recover it seems to have been settled at one time, that a creditor, or even ground of a deficiency another legatee, could, in some cases, compel a legatee, who had received his legacy, to refund in a case of a deficiency of * In pleading, no profert of the will is necessary; 3 Caine's R. 256. But in actions by executors or administrators, as such, profert of the letters testamentary, or letters of administration, should be made; 11 Mass. 314. It is a rule in pleading that each succeeding stage must go in support of that which precedes; for instance the replication must support the declaration; so in a suit by an executor, wherein the promise is alleged to the testator, in case the defendant pleads the statute of limitations, the plaintiff must not reply a promise within six years, made to himself; 3 East. 409; 3 B. & A. 631; 5 Binn. 573; contra, 8 Mass. 138; 9 Pick. 493; 3 N. H. R. 467. † In Cockerill et ux. v Kynaston, 4 Term, 277, a case on an account stated by the executor and the defendant; it was held, that this remained a debt of the testator; and Buller, J. said, that if the goods, the subject of the action, never were in the actual possession of the executor, and when recovered would be asssets, he must sue as executor. "The distinctions appear to be, Mr. Dane, Tit. Assumpsit, ch. 9. s. 19, says: 1st. If the debt never was due to the testator from the defendant, nor any other, nor from the facts of the case can be presumed to have been due to him, his representatives cannot sue as execut rs; but if they do. it is only surplusogo. 2d. If the debt ever was due to him, and was a credit of his creating, though not from the defendant, but from another; and received by the defendant, without the assent of the executors, they may sue as executors, or in their own right. 3d. If the ac tin is on the deed or promise to the testator, they must sue as executors. of assets. Parties to the record though in auter droit are not wit Desses. assets. If, however, the assets were sufficient at the testator's death, but were wasted by his executor, there was no refunding in favor of the legatee, or perhaps of the creditor; and a further distinction prevailed as to refunding in favor of the legatees or creditors, when the executor was insolvent, and in favor of the executor, who would lose, unless he could compel those who had received to refund; 1 Vern. 94. 460. 469; 1 P. Wms. 495; Com. Dig. 630; 1 Anstruther, 112; 2 Johns. Ch. R. 626,-7. But even it would seem to be peculiar to chancery jurisdiction. There is not any direct English decision before our revolution, that a creditor who has been paid a debt due him, can be compelled to refund in favor of another creditor; and there are express decisions to the contrary; 2 Vent. 260; Com. Dig. Chancery, 393. 6. ALLEN V. BLANCHARD, 9 Cow. N. Y. Rep. 631; SEARS V. DIL- A widow of a deceased partner is not a witness in an action brought by the surviving partner to recover a debt of the firm; because she is entitled to a distributive share of the estate. So, a party to the record, whether executor, administrator or otherwise, in auter droit is not a competent witness, in general, on grounds of policy or interest; and in the case in Pick. the court held, that where he resigned his trust, pending the suit, he was still liable to costs. Actionsaris ing in tort (B) ACTIONS AGAINST EXECUTORS IN TORT, &c. 1. FRANKLIN V. Low, 1 Johns. N. Y. Rep. 396; MELLIN V. BALD- Actions arising in tort or misfeasance do not survive against Co not sur executors or administrators. vive against executors; and of such Therefore, in Mellin v. Baldwin, where the plaintiffs had reis replevin plieved the chattels, described in the writ, from the possession against de of the original defendant, who had attached them at the suit of who is a de a creditor as the property of his debtor, who was not either of paty sheriff. fend int But in England if a party consent, he may be examined as a witness; 7 Bing. 395. the plaintiffs. Pending the suit, Baldwin, a deputy sheriff, died, and the court decided that the action abated by the death of the original defendant, for the reason that replevin cannot be maintained against the administrator of a tort feasor. Neither can the administrator be admitted to defend on his own motion; for his right must depend on the nature of the action; and not on his own consent. The statute of 1805 has altered the common law by providing that actions for the malfeasance of the sheriff or his deputy, may be sued against the executors, &c. of the sheriff, in the same manner as if the action survived at common law. It does not apply to the deputy; and if it did, it could not avail in this case; for here the action is against the original defendant for his malfeasance as a deputy sheriff. 2. HAW NICHOLSON V. ELTON, Sergt & Rawle's Penn. Rep. 415. Haw- 272. and admin the cause of es ex delic As representatives of the deceased, executors are answerable, Executors as far as they have assets, for his debts, covenants and other con- istrators tracts. But where the cause of action is a tort, or arises ex delicto are not in general lia supposed to be by force, there the action dies, as battery, tres- ble where pass, slander, nuisance, diverting water, and many other cases action is a of like kind. But in most, if not in all the cases, another action tort or aris may be brought, which will answer the purpose. As, if a man w. take a horse from another, and bring him back again, an action of trespass will not lie against the executor, though it would have lain against the party himself. But an action for the use and hire of the horse will lie against the executor; Hambly v. Trott, Cowp. 375. Nor will trover lie against an executor for a conversion by his testator, as was held in Hench v. Metzer's ex'r, for, in that case the form of the plea is not guilty, and the issue is to try the guilt of the testator; but where the testator had disposed of the property, his executor shall be charged for the value in an action for money had and received by the testator to the plaintiff's use. This points to the true and fundamental distinction taken in Hambly v. Trott, and recognised in Lattimore v. Simmons, and generally in the other cases, and which is this: If it is a sort of injury by which the offender acquires no gain to himself at the expense of the sufferer; but where, hesides the crime, property is acquired which benefits the testator, |