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with assets, and paid some of the legatees, but omitted to pay the plaintiff'; and at another meeting, at which however the plaintiff was not present, produced another account, charging himself with assets, and crediting himself with having paid "cash for legacy duties," to which was appended a supplemental account, containing an item, "By cash retained for A. B. 1797. 10s. ;" it was held that an action for money had and received and on an account stated was maintainable by the plaintiff, A. B., against the executor to recover the amount of the legacy (2).

In the case of Rubery v. Stevens (a) the liability of an executor upon a lease granted to his testator, for rent accruing after the testator's death, was much discussed. Denman, C. J., in delivering the judgment of the court, said, "The executor of a termor cannot waive a term, but must either renounce or accept the executorship in toto, and if he accept the executorship, and enter upon the demised premises (b), he is chargeable as assignee in an action of debt or covenant for the arrears of rent due after

his entry de bonis propriis. But as the rent may be of greater value than the land, it would be a hardship upon the executor in that case to charge him personally in his own right with the full amount of the rent; and from the authorities it is clear that he is not so chargeable. But then arises the question, whether he is personally liable in that event as assignee for no part of the rent, considering it as an entire thing, for the whole of which he must

(2) Hart v. Minors, 2 C. & M. 700; and see in the case of Trustees, Roper v. Holland, 3 Ad. & E. 99, post, 282.

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(a) Rubery v. Stevens, 1 N. & M. 182; 4 B. & Ad. 241, S. C. In 1 Wms. Saunders, 112, note (c), 5th ed., the result of the several cases on this subject is stated as follows:-If ar executor be sued in his representative capacity for rent accruing in his own time, either in debt or covenant, where the lease is by deed, or in debt or assumpsit for use and occupation, where the lease is not by deed, he may plead plenè administravit, and under that plea may show that the land yields no profit,

and that he had no assets aliunde, but if the land yields a profit equal to the rent, he will fail on a plea of plenè administravit, for he is bound to apply the profits of the land towards payment of the rent in the first instance,

and his not doing so will be a devastavit. If, therefore, the land yields some profit, but less than the rent, it should seem that his plea should be plenè administravit præter the profit. If, on the other hand, the executor be sued, as he may be when he enters and is in the actual occupation, in his individual capacity as assignee of the term, in debt, on a lease by deed, he must plead specially that he holds only as executor, that the land yields no profit, or less than the rent, and pray whether he shall be charged otherwise than in the detinet; in covenant he must plead the same matter specially."

(b) But an entry by one executor does not enure as to both, so as to make them jointly liable de bonis propriis, Nation v. Tozer, 4 Tyr. 561; 1 C., M. & R. 176, S. C.

be so liable or not at all; or whether the rent can be apportioned, and he is liable, in the character of assignee, for so much of the rent as the premises are worth. Upon reference to the authorities, it seems that the rent is in this case to be apportioned, and that the executor is chargeable personally for so much of the rent as the premises are worth."

But no such reason is applicable to a covenant to repair, and an executor who after the decease of his testator enters upon premises demised to the latter, may be charged personally as assignee of the term for dilapidations, though the premises do not yield any profit, or the dilapidations did not commence in his time, but are continued by him (c).

It has been decided that the promise of an executor to pay a debt, "whenever sufficient effects are received from the estate of the deceased," must be understood to mean sufficient effects in the ordinary course of administration (d).

If executors neglect to give orders for the funeral of the testator, and have sufficient assets for that purpose, they may be liable upon an implied promise to the person who furnishes the funeral in a manner suitable to the testator's degree and circumstances. But such liability is a personal liability, and they cannot be charged in their representative capacity for the expenses of such funeral (e). And if they indorse a bill or note, they are personally responsible thereon, although the instrument was vested in and transferred by them in their representative character (f). And an executor who makes a promissory note, whereby he promises, "as executor," to pay a sum of money "with interest, on demand," is personally liable thereon, without reference

(c) Tremere v. Morison, 1 Bing. N. C. 89; 4 Moore & S. 603, S. C., and see Reid v. Tenderden, 4 Tyr. 111.

(d) Bowerbank v. Monteiro, 4 Taunt. 844; see further Pearson v. Henry, 5 T. R. 8, per Buller, J.; Hindsley v. Russell, 12 East, 232.

(e) See Corner v. Shew, 3 Mee. & W. 355, and observations there of Parke, B., on the cases of Tugwell v. Heyman, 3 Camp. 298; Rogers v. Price, 3 Y. & J. 28, where the defendant was sued as executor; and Lucy v. Walrond, S Bing. N. C. 841, where the defendant was sued as administratrix for the funeral expenses of the intestate, but that case was decided on the ground of the payment of mo

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ney into court; Hayter v. Moat, 2 Mee. & W. 56; and see Brice v. Wilson, 3 Nev. & M. 512; Green v. Salmon, 3 N. & P. 388; 2 Jurist, 567. The expenses which executors will be justified in incurring about the funeral of the deceased, when his estate is insolvent, must be reasonable, with reference to the testator's condition in life; as to what is reasonable see Brice v. Wilson, ubi supra; Edwards v. Edwards, 4 Tyr. 438; 2 C. & M. 612. Where the deceased was a small tradesman, 107. was held to be a reasonable allowance for his funeral, Reeves v. Ward, 2 Scott, 390; 2 Bing. N. C. 235; 1 Hodges, 300.

(f) King v. Thom, 1 T. R. 489.

to assets (g). So an executor who as such submits a dispute to arbitration, thereby admits assets, and becomes personally liable upon the award (h).

Whenever money due on a contract with an executor will, when recovered, be assets, he may declare for it in his representative (i) or his individual capacity (k). Therefore an executor may sue and declare as such on a note indorsed to him in that character (1); or for goods sold by him after the testator's death, and which belonged to the testator (m), or for goods sold by the executor in that character, in the course of carrying on and continuing as executor the testator's business after his decease, although the goods were acquired by the executor after the death, provided they formed part of the assets (n); or for work done by him as such (0), and materials provided in completing work contracted to be done by his testator (p); or for money paid by him as executor (9); or for money had and received to his use as such (r); or upon an account stated with him, concerning monies due to the testator, or to the plaintiff as executor (s); and per

(g) Child v. Monins, 5 Moore R.

282.

The defendant pleaded plenè administravit, but did not aver that he had not assets when the note was given. But semble such averment would not have aided him. The court considered that as the note was payable, with interest, on demand, there was the consideration of giving time, which would render the defendant personally liable.

(h) Riddell v. Sutton, 5 Bing. 200; 2 M. & P. 345, S. C.

(i) 1 Chitty Pl., 6th ed. 20, 21. See Wirral v. Brand, 2 Lev. 165; Cowell v. Watts, 6 East, 405; Thompson v. Stent, 1 Taunt. 322; Wigley v. Ashton, 3 B. & Ald. 101; Powley v. Newton, 2 Marsh, 147; 6 Taunt. 456, S. C.

(k) Grissell v. Robinson, 3 Bing. N. C. 10; 3 Scott, 329, S. C.

(1) King v. Thom, 1 T. R. 487. (m) Cowell v. Watts, 6 East, 405. (n) Aspinall v. Wake, 10 Bing. 57. (0) Edwards v. Grace, 2 Mee. & W. 190; 5 Dowl. P. C. 302.

(p) Marshall v. Broadhurst, 1 C. & J. 403; though in the latter instance the executor should declare specially, showing the partial performance by the testator, and the plaintiff's com

pletion, id. Executors are responsible on, and bound to complete, all the contracts of their testator's, except where personal skill or taste is required, Siboni v. Kirkman, 1 Mee. & W. 418; 1 Tyr. & G. 777, S. C.

(g) Ord v. Fenwick, 3 East, 104. (r) Petrie v. Hannay, 3 T. R. 659; Foxwist v. Tremaine, 2 Saund. 207, 208, 117, c.

(s) Henshall v. Roberts, 5 East, 150; Cowell v. Watts, 6 East, 406, 403; Thompson v. Stent, 1 Taunt. 322; 1 Chitty Pl. 6th ed. 205. In an action for a debt due to the deceased, there may be introduced into the declaration a count, laying a promise to the plaintiff as executor to pay a debt laid to be due to the executor as such. If a plaintiff executor fail in the action, he is prima facie liable to costs, although he sues strictly as executor, and lays promises to the deceased only. See 3 & 4 Will. 4, c. 42, s. 31; Jobson v. Forster, 1 B. & Ad. 6; Slater v. Lawson, id. 893. It is necessary to insert a count on a promise to the plaintiff as executor, in order to be entitled to prove a promise to him after the testator's death; Sarrell v. Wine, 3 East. 409; Ward v. Hunter, 6 Taunt. 210; Pittam v. Forster, 1 B.

haps an executor may sue as such for money lent by him, in his representative character, out of the assets, there being left sufficient for payment of debts, &c. (t).

An executor may it seems be sued in that character for money paid (u) for his use therein; but not for money lent to or had and received by him as such (v); nor for the funeral expenses of his testator (x). And a count for work done for the defendant, as executor, cannot be supported; for though where a testator may have employed a plaintiff to perform work, and dies, and the plaintiff completes the work after his death, the executor will be liable as such; yet he must be declared against specially, and the common count is not sufficient (y). But a count on an account stated by a defendant as executor, respecting monies due from the testator, or from the defendantas executor, may be supported and joined with counts on promises by the testator (z).

A person who is neither executor or administrator, may nevertheless, by intermeddling with the goods or affairs of the deceased, render himself an executor in his own wrong, or, to use a more technical expression, an executor de son tort, and liable not only to an action by the rightful executor or administrator, but also to be sued by a creditor of the deceased (a); and this though such person do not profess to act as executor or administrator (b). But the real and legal executor or administrator is

& C. 248; 2 D. & R. 363, S. C. An executor defendant has no privilege as to costs, Tidd, 9th ed. 979.

(1) See Webster v. Spencer, 3 B. & Ald. 360; Richardson v. Griffin, 2 Chitty R. 325; and see M'Clelland v. M'Adam, 1 Alcock & Nap. 488.

(u) Ashby v. Ashby, 7 B. & C. 444; Corner v. Showe, 3 Mee. & W. 350; 6 Dowl. P. C. 584.

(v) Id.; Coryton v. Lithebye, 2 Saund. 117 d; Jennings v. Newam, 4 T. R. 347; Rose v. Dowler, 1 H. Bla. 108; see Meert v. Moessand, 1 M. & P. 8; per Alderson, B., Corner v. Shew, 3 Mee. & W. 351.

(x) Ante, 273, note (e).

(y) Per Parke, B., Corner v. Shew, 3 Mee. & W. 352.

(z) Powell v. Graham, 7 Taunt. 580; 1 Moore, 305, S. C.; Ashby v. Ashby, 7 B. & C. 444.

(a) 1 Wms. Executors, 136, 141. (b) Leally v. Powis, 1 Har. & Wol. 2; as to what is sufficient to charge a party as executor de son tort, see id.;

Samuel v. Morris, 6 C. & P. 620; 2 Wms. Executors, 136-139. The widow of a hair-dresser, who died in October, 1836, continued to reside in his house and keep open his shop, through which, however, was the entrance to the house; but there was no proof of any articles being sold. In December she received notice of a bond debt of 100l., and had his goods valued; and in January, 1837, on the application of a creditor, to whom her husband owed 240l. for goods, she gave a promissory note for that amount at twelve months date, and in March she took out administration; it was held, in an action on the note, that this was not evidence to charge her as executrix de son tort; Serle v. Waterworth, 4 M. & W. 9; 6 Dowl. P. C. 684; 2 Jurist, 745, S. C. When there is a rightful and legal executor or administrator, there cannot in general be a wrongful one; 2 Wms. Executors, 139.

not prejudiced by any act done or agreement entered into by an executor de son tort; and it seems that an executor de son tort, to whom administration is subsequently granted, may repudiate a contract entered into by himself before the grant of administration (c).

6. OF THE CONTRACTS OF CORPORATIONS.

Corporations have, like individuals, the power to contract; but their agreements must, in general, be under their corporate seal (d); and such seal must be affixed with intent to render the instrument effectual and operative, although no formal delivery thereof is necessary (e).

For general purposes, not affecting the interest or title of the corporation, a corporation may act through the medium of an agent, although he possess no authority under seal (ƒ).

On this general principle, that a corporation aggregate can only act and speak by its common seal, several exceptions have been engrafted. Thus several cases have established that such corporations may maintain actions on executed parol contracts. They may sue for use and occupation of their lands either in the form of debt (g) or assumpsit (h). And since they can thus sue, they may also be sued in the same form of action; and hence it is said by Mr. Justice Patteson, when delivering the judgment of the Court of Queen's Bench in Beverley v. The Lincoln Gas Light and Coke Company, "We do not see how it can be denied

(c) Doe d. Hornby v. Glenn, 3 Nev. & Man. 837; 1 Ad. & E. 49; Dickenson v. Naul, 1 Nev. & Man. 721; unle, 230, note (ƒ).

(d) Bac. Ab. Corporations, (E.), 3; Rex v. Bigg, 3 P. Wms. 432, 434; The King v. The Inhabitants of Chipping Norton, 5 East, 239; Yarborough v. The Bank of England, 16 East, 11.

(e) Derby Canal Company v. Wil mot, 9 East, 360. As to the seal being affixed by directors of an incorporated company, and the necessity of their having the express sanction of the company, &c., see Clarke v. The Imperial Gas Light Company, 1 Nev. & Man. 206; 4 B. & Ad. 315, S. C. The directors (managers by statute) of an incorporated company, when cannot sue the company for remuneration, though

directed to be paid by a resolution of the company, not under seal, Dunston v. The Imperial Gas Light Company, S B. & Ad. 125, post, 278. A member of the corporation, contracting with the corporation, must be deemed in respect of that contract a stranger, Hill v. Manchester Waterworks Company, 2 Nev. & Man. 573; 5 B. & Ad. 866.

(f) Roe v. Pierce, 2 Camp. 96. So a corporation may be liable for the tortious act of their agent, though he be not appointed under seal; Smith v. Birmingham Gas Company, 1 Ad. & E. 526; 3 Nev. & Man. 771.

(g) The Dean and Chapter of Rochester v. Pierce, 1 Camp. 466.

(h) The Mayor of Stafford v. Till, 4 Bing. 75; for tolls, The Mayor of Carmarthen v. Lewis, 6 Car. & P. 608.

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