CHAPTER Dissolution by death. By bankruptcy. OCCASIONAL EXECUTORS AND ADMIN ISTRATORS. K. and A. dissolved partnership, and advertised the dissolution in the Gazette. K. accepted a bill in the name of the firm, ante-dating it, so that it appeared to have been drawn before the dissolution. This bill came into the hands of the indorsee, for value, without actual notice of the dissolution. A. had allowed his name to remain over the door of a hatter's shop in the Poultry, where the business had been carried on. Lord Ellenborough held A. liable on the bill, observing, that he had imprudently suffered notice to be given of the continuance of the partnership by permitting his name to remain over the door (d). If one partner die, being liable or entitled on a bill or note, the legal right or liability survives, but the personal representatives of the deceased were entitled or liable in equity (e). Bankruptcy being a dissolution, an indorsement by one. of the several partners, after a secret act of bankruptcy, is invalid (f). But it has been also held, that, as the ex-partners still hold themselves out to the world as partners, they are liable to third persons (g). Lastly, as to an occasional partnership. A partnership may be either a general partnership, or a particular one for a single transaction. An interest in the profits of a single transaction makes a man a partner, and liable to third parties (h). A joint security given by one partner, in a mere occasional partnership for a private debt, does not charge his co-partner, though in the hands of a bona fide holder for value (i). The executor of a deceased party to a bill or note has, in general, the same rights and liabilities as his testator. (d) Williams v. Keats, 2 Stark. 290; 19 R. R. 723; and see Newsome v. Coles, 2 Camp. 617; 12 R. R. 756; Stables v. Ely, 1 C. & P. 614. (e) Lane v. Williams, 2 Vern. 277; Bishop v. Church, 3 Ves. sen. 100, 371; Vulliamy v. Noble, 3 Mer. 614; 17 R. R. 143; Heath v. Perceval, 1 P. Wms. 682; 1 Stra. 403. But the right of survivorship, in partnership chattels "The executors of every person," says Lord Macclesfield, "are CHAPTER implied in himself and bound without naming" (k). V. Therefore, if a bill be indorsed to a man who is dead, by Their rights a person ignorant of his death, that will be an indorsement and duties. to the personal representative of the deceased (7). On the death of the holder of a bill or note, his executors or administrators may indorse (m); and an indorsement by the executors or administrators is for all purposes as effectual as an indorsement by the deceased (n). Presentment (0), notice of dishonour and payment should be made by and to the executor or administrator, in the same manner as by or to the deceased. If the holder be dead and the executor have not yet proved the will, still it seems the executor is bound to present the bill when presentable (p); for his title to his testator's property is derived exclusively from the will, and vests in him from the moment of the testator's death (q). But as the title of an administrator is derived wholly from the Court of Probate, and he has none till the letters of administration are granted, he would probably be excused by impossibility. A probate, being a judicial act of the Court of Probate, Effect of is conclusive as to the validity and contents of the will, probate. and the title of the executor; and, as long as it remains unrepealed, cannot be impeached in the other Courts. Therefore, a voluntary payment to an executor who has obtained probate of a forged will, is a discharge to the debtor, notwithstanding that the probate is afterwards declared null (r). Bills of exchange are to be paid in the course of administration as simple contract debts. They were before the General Probate Act, 20 & 21 Vict. c. 77, bona notabilia; not, as in a case of specialty, where the instrument might happen to be, but where the debtor resided at the time of the creditor's death (s). (k) Hyde v. Skinner, 2 P. Wms. 196. See Williams v. Burrell, 1 C. B. 402. (1) Murray V. East India Company, 5 B. & Ald. 204; 24 R. R. 325. (m) Rawlinson v. Stone, 3 Wils. 1; 3 Stra. 1260. (n) Watkins v. Maule, 2 Jac. & Walker, 243. (0) Molloy, 2, 10. (P) Marius, 135; Molloy, 2, 10; Poth. 146. (9) Com. Dig. Adminis. B. 10; Woolley v. Clark, 5 B. & Ald. 744; 1 D. & Ry. 409; 24 R. R. 546. (r) Allen v. Dundas, 3 T. R. 125; 1 R. R. 666. (8) Yeomans V. Bradshaw, Carthew, 373; 3 Salk. 70. CHAPTER Priority of specialty over simple contract debts abolished. Debtor made executor. By 32 & 33 Vict. c. 46, the priority of specialty over simple contract debts in the case of persons dying since January 1st, 1870, is abolished. It was a general rule of law, that, if a creditor constituted his debtor executor, the debt was released and extinguished, for the same hand being at once to receive and to pay, the action was suspended; and a personal action once suspended by the act of the parties is gone for ever; but it was otherwise in equity in the absence of circumstances showing an intention to release the debt, and the equitable doctrine now prevails (f). Hence it followed that if the holder of a bill appointed the acceptor his executor the acceptor was discharged at law, and all the other parties also, for a release to the principal discharged the sureties. So it has been decided, that if the payee of a note, payable on demand, constituted the maker of the note his executor, the maker was discharged, not only from his liability to the estate of the testator, but also from his liability as maker to an indorsee to whom the executor assigned it after the testator's death (u). But it is conceived that if the note, at the time of the testator's death, had been in the hands of an indorsee, the maker would still have been liable as maker to the indorsee, and that if the note had been payable at a future time, and indorsed by the executor after the testator's death, but before the note was due, the maker would have been (t) Year Book, 20 Edw. 4, 17; 21 Edw. 4, 36: Dyer, 140; Nedham's Case, 4 Coke, 409, a; Fryer v. Gildridge, Hobart, 10; Sturleyn v. Albany, Cro. Eliz. 150; Dorchester v. Webb, Cro. Car. 372; Wankford v. Wankford, 1 Salk. 299; Cheetham v. Ward, 1 Bos. & Pul. 630; 4 R. R. 741: Freakly v. For, 9 B. & C. 130; 32 R. R. 605. As to the equitable doctrine, see Strong v. Bird, L. R., 18 Eq. 315. But for the prevalence given to the rules of equity under the Judicature Act, some provision correcting the old rule at law might have been necessary in the Code. Sect. 61 does indeed expressly deal with the case of the acceptor (or maker), but does not include the other parties to a bill, as drawer or indorsers, and only treats of a transfer to him in his own right at or after maturity, whereas the former rule of law was general. It seems, therefore, that the framers of the Code regarded the old rule of law as already overridden by the doctrine of the Chancery side, and that s. 61 was not directed against it, or the other parties to a bill would have been included in the section, but against the re-issue of an instrument coming after maturity into the hands of the party ultimately liable in his own right, and not merely as assignee or trustee or executor, for then the instrument is functus officio and the stamp exhausted. (u) Freakly v. For, 9 B. & C. 130: Man. & R. 18; 32 R. R. 605. See also Harmer v. Steele, 4 Exch. 1. Such a release in law might formerly have been made by an infant testator, at the age of seventeen years complete. Co. Litt. 264. b. V. liable as maker to an indorsee without notice; for since a CHAPTER premature secret payment by the maker would not have protected him (r), no more, it should seem, would a premature secret release to him (y). If one of several joint debtors were appointed executor, it was a release to all (z), and though they were liable severally as well as jointly, for judgment and execution against one would have been a discharge to all (a); and an express release to one might have been pleaded in bar by all (b). The debt was also released where one only of several executors was indebted (c), and though the executor die without having either proved the will or administered (d). But if a sole executor refused to act, the debt was not discharged (e). If the creditor made the executor of the debtor his executor, that was no discharge (f). Though the appointment of a debtor to be executor Debt is assets. released him from liability to the first or any subsequent representatives of the testator, yet the debt is still assets in his hands in favour both of creditors and legatees (g). The taking out letters of administration by a debtor to Debtor his creditor is merely a suspension of the legal remedies becoming as between the parties: but being the act of the law, and administrator. not the act of the intestate, it is no extinguishment of the debt, for the action will revive when the affairs of the intestate and of the administrator are no longer in the hands of the same person (h). If a note or a bill be made or indorsed to an executor as When execuexecutor, he may sue on it in his representative capacity, tors may sue (r) Burbridge v. Manners, 3 Camp. 193; 13 R. R. 786. (y) Dod v. Edwards, 2 C. & P. 602. (2) Wentworth, Off. Exors. c. 2; Com. Dig. Admin. B. 5. (a) Bro. Ab. Exors. p. 118; Fryer v. Gildridge, Hob. 10; Cheetham v. Ward, 1 Bos. & Pul. 630; 4 R. R. 741; Wankford v. Wankford, 1 Salk. 299. (b) 2 Rol. Abr. 412; Clayton v. Kynaston, 2 Salk. 574; 2 Saund. 47, t. (c) Bro. Exors. pl. 114; Went. Off. Exors. c. 2, pp. 74, 75, 14th ed.; Com. Dig. Adm. B. 5; Wankford v. Wankford, 1 Salk. 299, by Powell, J.; Cheetham v. Ward, 1 Bos. & Pul. 630; 4 R. R. 741. (d) Wankford v. Wankford, 1 B.B.E. Salk. 299; Went. c. 2; Com. (e) Wankford v. Wankford, 1 (f) Bac. Abr. Exors. A. 10; Dorchester v. Webb, Cro. Car. 372; W. Jones, 345; 1 Salk. 305 ; Alston v. Andrew, Hutton, 128. (g) Bac. Abr. Exors. A. 10; Brown v. Selwyn, Cases temp. Talbot, 241, 242; Holiday v. Bous, 1 Rol. Abr. 920; Woodward v. Lord Dacey, Plowd. 186; Dorchester v. Webb, Cro. Car. 373; Shep. Touchstone, 497-8; Wankford v. Wankford, 1 Salk. 299. See Wentworth, Off. Exors. c. 2. (h) Sir John Nedham's case, 4 Coke, 409; Wankford v. Wank5 as such. CHAPTER Joinder of causes of and join claims on promises to the testator (i): and a note given to the administrator for a debt due to the testator passes to the administrator de bonis non (k); though a payment of the amount of the instrument to the administrator of the executor would be good in equity, and now at law (1). After considerable conflict, the rule of law was firmly established, that whenever the money sought to be recovered was assets, the executor might sue, as executor, on a contract made with himself in his representative capacity, and join counts on promises to his testator (m). Thus to counts on a bill or note given to his testator, he might join a count for money paid by himself as executor (n); a count for goods sold by himself (o), for works done by himself (p); a count on an account stated with the plaintiff as executor, of monies due to the testator (q); or a count on an account stated with the plaintiff as executor, of monies due to himself as executor (r). Claims by or against an executor or administrator as such, may be joined with claims by or against him personally, action against. provided the last-mentioned claims are alleged to arise with reference to the estate in respect of which the plaintiff or defendant sues or is sued as executor or administrator (s). ford, 1 Salk. 299; Wentworth, (i) King v. Thom, 1 T. R. 487. (1) Barker v. Talcot, 1Vern. 473; Judicature Act, 1873, s. 25 (11). (m) 2 Wms. Saunders, 117, d. (n) Ord v. Fenwick, 3 East, 104. As to money lent, see Webster v. Spencer, 3 B. & Ald. 365 22 R. R. 427. (0) Cowell v. Watts, 6 East, 405; 9 Smith, 410. (p) Marshall v. Broadhurst, 1 C. & J. 403; Edwards v. Grace, 2 M. & Wels. 190; 5 Dowl. 302. (q) Jobson v. Forster, 1 B. & Ad. 6. (r) Dowbiggin v. Harrison, 9 B. & C. 666; 4 Man. & R. 662. (8) Ord. XVIII. r. 5. Formerly in an action against an executor, on a bill or note of his testator, a count for money had and received by the defendant as executor could not be joined ; Jennings v. Newman, 4 T. R. 347 Ashby v. Ashby, 7 B. & C. 444; 1 Man. & R. 180; 31 R. R. 242; nor a count for money lent to the executor; Rose v. Bowler, 1 H. Bla. 108; nor a count for goods sold to the executor, or work done for him. Corner v. Shew, 3 M. & W. 350; Kitchenman v. Skell, 3 Ex. 49. A count for money paid to the use of the executor probably might. Ashby v. Ashby, supra. A count on an account stated by the executor of monies due from the testator might be joined; Secar v. Atkinson, 1 H. Bla. 102; and so might a count on an account stated by the executor of monies due from him as executor. Powell v. Graham, 7 Taunt. 581; 1 Moo. 305; 18 R. R. 593; Ashby v. Ashby, supra. Wherever the judgment on a count common was de bonis testatoris the count might be joined; but where the judgment was de bonis propriis it could not. See 2 Wms. Saun. 117, c.; Hall v. Huffam, 2 Lev. 228; Curtis v. Davis, Lev. pt. II. 110; May v. Woodward, 1 Freem. 247. |