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Executor cannot be sued at once in
In an action against an executor or administrator, claims
made against him in his representative character
personal character (z).
The Common Law Procedure Act, 1852, s. 41, which
sentative and in his personal character.
Co-executors should be sued jointly.
RULE 76.-All co-executors or co-administrators who have administered, should be joined as defendants in an action.
When an action is brought by executors, they must in general, all join, whether they have administered or not (c), but the rule as to joinder is different in actions against executors or administrators; for none need be joined who have not administered.
Hence, suppose X., Y., and Z. to be co-executors, and an action to be brought against X. and Y., they cannot plead the non-joinder of Z., unless they can also plead that he has administered (d).
(z) See corresponding subordinate rule as to plaintiffs, p. 218, ante.
(a) Nor can claims against an executor as such be joined in the same count with claims against him personally, Kitchenman v. Skcel, 3 Ex. 49.
(b) Davies v. Davies, 1 H. & C. 451 ; 31 L. J. 476, Ex. ; Wigley v. Ashton, 3 B. & Ald. 101 ; Bullen, Pleadings, 3rd ed., 152, 154, 155.
(c) As to the effect of non-joinder in actions on contract, see Chapter XXXIV., post.
(d) 2 Williams, Executors, 6th ed., 1787.
An executor de son tort, may be sued jointly with a lawful executor, or they each may be sued separately, but an administrator cannot be sued jointly with an executor de son tort (e).
It is no reason for not joining an executor as defendant, that he is a bankrupt. If a married woman is sued as co-executrix, or co-administratrix, her husband must be joined as co-defendant (f).
be sued in
RULE 77.--The heir may be sued on contracts Rule 77. of the deceased in three cases, sc.,
1. On contracts by deed in which the ancestor three cases. expressly binds himself and his heirs.
2. On contracts of record. 3. On covenants real.
Case 1.- Where the ancestor expressly binds himself Contracts and his heirs by a contract under seal, the heir may be
under seal. sued (g), but he is not bound by the simple contracts of his ancestor, nor is he bound by a bond or obligation, unless he is named (h), and it is said that he is not bound unless the ancestor binds himself also (i): an heir, moreover, is bound only provided that, and in so far as, he has legal assets from his ancestor ()). Case 2.-If an ancestor bind himself by a contract of Contracts
of record. record, e. g., a judgment, statute, recognizance, &c., the heir is bound.
Covenants Case 3.—The heir is bound as assignee on covenants
(e) i Williams, Executors, 6th ed., 255.
(f) Ibid., 1787. See p. 298, ante. As to the effect of death, see Rules 44, 45, ante, which apply, mutatis mutandis, as well to actions against, as to actions by, executors, &c.
(g) Bacon, Abr., Heir, F.
EXECUTORS real ; i. e., covenants which run with the land and descend
to the heir (1:).
SUBORDINATE RULE I.
Subordinate Rule I.
A devisee is liable under the same circumstances under
which the heir would be liable.
Devisee liable where heir liable.
A devisee, or person to whom freehold estate is devised by will, was not at common law liable for any contract of the devisor. But by 11 Geo. IV. & 1 Will. IV. c. 47, ss. 2, 3, 4, a devisee is placed in the same position as the heir; i.e., the devisee is bound under the same circumstances, and to the same extent as the heir would have been bound if the land had come to him by descent. If there is an heir, the devisee is bound jointly with the heir, and must be sued jointly with him (1). If there is no heir, the devisee is bound solely (m).
A devisee of a devisee is bound as well as the original devisee (n).
SUBORDINATE RULE II.
Subordinate Rule II.
In no case can an erecutor or administrator be sued to
gether with an heir or devisee.
Executor and heir cannot be sued jointly.
An action cannot be brought against the executor and the heir jointly, but when each are liable, the plaintiff may sue either at his choice, and may sue each at the same time. When an heir is also executor, separate actions may be brought against him in each capacity (0).
(k) See pp. 211--213, ante.
(m) Hunting v. Sheldrake, 9 M. & W. 256. See Morley v. Morley, 25
(ne) 11 Geo. IV. & 1 Will. IV., c. 47, s. 3; Bullen, Pleadings, 3rd ed., 169.
(o) Chit., Pleadings, 7th ed., 61.
ACTIONS FOR TORT.
RULE 78.—No one can bring an action for any Rule 78. injury which is not an injury to himself.
It follows from the general principles already laid
not an down (a) that no one can bring an action for any tort” injury to
himself. or injury (6) (i. e., any interference with a right existing independently of a contract), except the person whose right has been interfered with : A., that is to say, can never sue X. merely for an injury done to B. by X.
The rule that one person cannot bring an action for an interference with the rights of another, seems, at first sight, too obvious to need explanation; but it might appear from the language in which actions are constantly described to be subject to exceptions. Thus actions are spoken of as brought by masters for injuries to servants; by parents for wrongs to their children; or, again, by tenants or bailees for damage to the property of their landlords or bailors. It will, however, be found that in all the cases in which A. is described as suing X. for injuries to B., the real ground on which he maintains an action is the invasion of some right of his own, though it may happen that the injury to A. is the result of, or closely connected with, a wrong done to B.
(a) Rule 2.
Master and servant.
Master and Servant.-A master often brings an action for what is called an injury to his servant. In strictness, however, the master sues not for the injury to his servant, but for the injury to himself resulting from damage to his servant. 6. If
my servant is beat, the master shall not have an action for this battery unless the battery is so great that by reason thereof he loses the service of his servant; but the servant himself for every small battery shall have an action, and the reason of the difference is, that the master has not any damage by the personal beating of his servant, but by reason of [the loss of service,] so that the original act is not the cause of his action, but the consequent upon it, viz., the loss of his service. . For be the battery greater or less, if the master doth not lose the service he does not have an action" (c).
Hence it does not matter as regards the master's right to sue, how the injury is caused to the person of his servant, whether by an assault (d), by battery (e), by negligence (s), or otherwise. The loss of service is, on the
f other hand, essential, but a service, de facto, is enough to support the action (9). The master and servant have each a separate right of action, the master for the loss of service, the servant for the assault, &c. (h).
(c) Mary's case, 9 Coke, 113 a.
(f) Hall v. Hollander, 4 B. & C. 660; Jartinez v. Gerbcr, 3 M. & G. 88 ; Gough v. Bryan, 2 M. & W. 770.
(9) See Martinez v. Gerber, 3 M. & G. 88; 10 L. J. 314, C. P. For these and other examples, see Smith, Master and Servant, 2nd ed., 96, 97.
(h) The master may have a right to sue for loss of service, when no injury has been done to the servant. Thus, where a servant has been enticed away from, or induced to break, his contract of service, by a per. son who knew the servant to be in the employment of the plaintiff, the master can sue the person enticing the servant away (Lumley v. Gye, 2 E. & B. 216 ; 22 L. J. 463, Q. B. ; 23 L. J. 112, Q. B. ; Hart v. Aldridge, Cowp. 54; Blake v. Lanyon, 6 T. R. 221 ; Smith, Master and Servant, 2nd ed., 87–89),