1 PLAIN- effects, or make any other agreement in their representative character, are no TIFFS. bound to declare in that capacity, but may sue in their individual right; and 5. Execu- in such case it is sufficient to join as plaintiffs such only of the executors as tors, heirs, &c. interfered, and were actual parties to the contract with the defendant (c). An executor cannot sue as such upon a penal statute (d). In the case of an aggregate corporation the successors may sue on a contract with, or cause of action vested in, their predecessors (e). Before the 3 & 4 W. 4, c. 42, sect. 31, executors and administrators who sued at law unsuccessfully for the breach of a supposed contract with the deceased, were not liable to pay costs, de bonis propriis, which immunity encouraged many indiscreet and hasty actions; but now executors and administrators are as much liable to pay costs as other unsuccessful plaintiffs, unless the judge who tries the cause certifies so as to protect them from costs. So that now a personal representative must fully inquire into the sustainability of an action before it is commenced (ƒ). The right of the grantee of a reversion to sue upon a covenant relating to and running with the estate, has been already noticed (g). In the case of the death of the covenantee seised in fee, the executor may sue at common law upon such covenants, though they affected the realty, as were broken in the testator's life-time and actually diminished his personal estate (h). But it is only by virtue of the statute 32 Hen. 8, c. 32 (40), that an executor can sue for arrears of rent which accrued to his testator, who was seised in fee or for life (i). With regard to such breaches of real covenants as occurred in the [*24] life-time of the ancestor, but *occasioned him no actual damage, or after his death, the action should be brought in the name of his heir, or his devisee, who, in this respect, is invested with the same rights as would have devolved on the heir (k) (41). The heir or devisee need not be expressly named in the cove (i) The 11 Geo. 2, c. 19, s. 15, gives an executor of a tenant for life the right to sue for a proportion of the rent to the death of the testator, where he dies before the rent was actually due, unless the tenant held under a lease granted pursuant to a leasing power, in which case the whole rent goes to the remainder-man. 1 Chit. Col. Stat. 673 note (i); Ex parte Smyth, 1 Swanst. 337; 8 Ves. 311; 2 Ves. & B. 334; 1 P. Wms. (40) In force in Pennsylvania, except the 2d section. Roberts' Dig. 254. 3 Binn. 620. By Laws of New York, sess. 36. c. 63. s. 18. 1 R. L. 439, executors or administrators are authorized to sue an action of debt, or to distrain, for arrearages of rent in the life-time of their testator or intestate. (1 R, S. 747.) Independent of these provisions, an executor or administrator may have an action of covenant, on an express covenant in the lease, for the payment of rent in arrear at the death of the testator or intestate. Van Rensselaer's Ex. ecutors v. Platner's Executors, 2 J. Cas. 17. As to the general rule that the personal representative only shall have an action on a covenant broken in the life-lime of his testator or intestate, see Com. Dig. Administration (B. 13), Covenant, (B. 1.) Hamilton et al. v. Wilson, 4 J. R. 72. (41) 12 S. & R. 139. But in Pennsylvania an action for the non-performance of an agreement under seal for the conveyance of land, is to be brought by the personal representative of the covenantor, and not by his heir. Watson v. Blaine, 12 S. & R. 131. TIFFS. nant in order to entitle him to sue: the slightest indication of an intention that 1. PLAINthe covenant should not determine with the death of the testator would leave the remedy to the representative of his realty (m). The executor of a termor 5. Execu(although he has demised for a longer term than his own) may support an ac- &c. tors, heirs, tion on the covenant for the stipulated rent, due since the death of his testator, on the privity of contract, though not on any supposed privity of estate (n). If an executrix or administratrix marry, she and her husband should join for the breach of any personal contract made with the deceased (o); but if she sue alone, the defendant cannot avail himself of the nonjoinder except by a plea in abatement (p); and when a bond or other contract is made to husband and wife as executrix, he may sue alone (q). When an executor dies after he has proved the will, his executor, or the executor of such executor, is the party to sue on the contract made with the original testator, provided the money to be recovered would be the assets of the representatives of the original testator himself; and the same rule applies in the case of the death of an administrator of the intestate (r). If the money to be recovered would be assets of the original testator, then, in case of the death of his first representative, administration de bonis non must be obtained, and the defendant sued accordingly; and, therefore, where A. died intestate, and B. took out administration, and died before the effects were fully administered, and C. took out administration de bonis non, and sued D. as acceptor of the bill of exchange indorsed to the administratrix in payment of a debt due to the intestate; it was held that the action was well brought by the administrator de bonis non (s). And if a promise be made to the personal *representative of an in- [25] testate, the administrator de bonis non may sue on it in his character of administrator, and may join such a cause of action with counts upon promises made to the intestate (t). Where an infant is a sole executor, probate is not to be granted to him till he attain the age of twenty-one years, and in the interim administration with the will annexed is to be granted to another person (u), In the case of bankruptcy the legal rights of the bankrupt arising from con- 6thly. In tracts made with him, and in the performance whereof the bankrupt is benefi- the case of Bankrupt. cially interested, are, by the express provisions of the Bankrupt Act, transferred to and vested in his assignees (42), which enacts, that the commissioners shall assign all debts due or to be due to the bankrupt, and such assignment (m) 2 Lev. 92; 2 Saund. 367 a, 371; Platt. on Cov. 517, 518. It is well observed by Mr Platt, that perhaps the best way of putting it is, that the covenant will in all these cases run with the land in favor of the heir, unless an evident intention be manifest ed to confine it to the covenantee. As to warranty, see Co. Lit. 384 b. (n) Baker v. Gosling, 1 Bing. N. C. 19, 284; 2 Chitty's Rep. 461; 2 Chit. Pl. 565 a, 5 ed. (0) Com. Dig. Baron and Feme, V. (p) 3 T. R. 631; 1 Saund. 291 g. (q) 4 T. R. 616; 1 Salk. 117. (r) See Toller, 1st edit. 41, 26. What (s) 2 D. & R. 271; 1 B. & C. 150, S. C.; (u) 38 Geo. 3, c. 87; see Toller, 367; (42) In the case of assignees appointed under the bankrupt law of a foreign country, the suit must be in the name of the bankrupt, and not of the foreign assignees. Bird et al. v. Caritat, 2 Johns. Rep. 342. So the assignees under the insolvent law of another state must, in the state of New York, sue in the name of the insolvent. Raymond r. Johnson, 11 Johns. Rep. 48. cy. 1. PLAIN- shall vest the property, right and interest in such debts, in such assignees as TIFFS. fully as if the assurance whereby they are secured had been made to such as6. Bank- signees; and after such assignment, neither the bankrupt, nor any person ruptcy. claiming through or under him, shall have power to recover the same, nor to make any release or discharge thereof, neither shall the same be attached as the debt of the bankrupt by any person, according to the custom of the city of London or otherwise, but such assignees shall have like remedy to recover the same, in their own names, as the bankrupt himself might have had if he had not been adjudged bankrupt (v). There are cases, however, in which the bankrupt may sue as trustee for his creditors (w). [* 26 ] The right of action is vested in all the assignees jointly, and the nonjoinder of one of them as a plaintiff in an action was considered a ground of nonsuit (x). But in the case deciding that point, the contract declared on was exclusively made with the assignees, and therefore they did not altogether sue in autre droit; and, in general, when assignees sue on a contract with the bankrupt, there seems no reason why, if two out of three be plaintiffs, the defendant should not be required (if he will set up the objection) to plead the nonjoinder of the third in abatement (y). Where an action has been commenced by the bankrupt before the bankruptcy, the defendant may defeat the action by specially pleading the bankruptcy and assignment, and the assignees will be compelled to proceed de novo in their own names (z). *Where one of several assignees has been removed by order of the Chancellor, such order, unless it has been followed up by a re-assignment or release from the removed assignee to the remaining assignees, or by a new assignment by the Commissioners, does not operate to divest the legal interest of the removed assignee, and he is therefore still a necessary party to an action (a) (43). When a fresh assignment to new assignees has been ordered, it is enacted by the 6 Geo. 4, (b) that the debts and personal estate of the bankrupt shall be thereby vested in the new assignees, and that it shall be lawful for them to sue for the same, and to discharge any action or suit and release debts as effectually as the former assignees might have done, and that the new conveyance shall be valid without any conveyance from any former assignee. A new assignee may sue upon a judgment recovered by a former assignee where such judgment was recovered, as well for damages sustained by reason (v) 6 Geo. 4, c. 16, s. 63. The consent of the creditors to the assignees suing at law is not necessary, vide sect. 88; 2 Y. & J. 475. As to right of assignees to sue for unliquidated damages, see 2 Bar. & Adol. 727; 9 Bing. 33, and for injury to bankrupt's personal property, 8 Bing. 358. (w) 1 Bar. & Adol. 459. (x) Snelgrove v. Hunt, 2 Stark. R. 424; 1 Chit. R. 71; but the contract declared on was made exclusively with the assignees, and therefore they did not sue merely in a representative character, see observations in Alivon v. Furnival, I Cr. M. & R. 285. 296. (y) Quare, if it ought not to be pleaded in abatemeut, as in case of nonjoinder of a co-executor; see argument and judgment in Alivon Furnival, 1 Cr. M. & Ros. 290. 296. (z) 15 East, 622; 4 B. & C. 920. That this defence, if it arise after the commencement of the action, must be specially pleaded, and cannot be given in evidence under the general issue, see 4 B. & Ald. 345; 4 B. & C. 390. Where the bankruptcy of the plaintiff occurs after judgment, the action does not abate, and the assignees may proceed therewith to execution, &c. See Tidd, 9th edit. 1115, 1116. (a) 5 East, 407; 6 Moore, 599; 1 Chit. Rep. 71. (b) Section 66. (43) Vide Van Valkenburg v. Elmendorf, 13 J. R. 314. TIFFA. of injuries committed by the defendant against the bankrupt before his bank- 1. PLAINruptcy, as against the assignee as such after the bankruptcy (c). By the 67th sect. of the 6 Geo. 4, it is provided that" whenever an assignee shall die, or a 6. Banknew assignee or assignees shall be chosen, no action at law or suit in equity ruptcy. shall be thereby abated; but the Court in which any action or suit is depending may, upon the suggestion of such death or removal and new choice allow the name of the surviving or new assignee to be substituted in the place of the former, and such action or suit shall be prosecuted in the name or names of the said surviving or new assignee or assignees, in the same manner as if he or they had originally commenced the same." And under the 6 G. 4, c. 16, s. 67, it has been decided, that a second assignee, who continues by suggestion on the record, a suit commenced by his predecessor, may recover a penalty as well as his assignee (d). Before assignees have been appointed, the provisional assignee (e) may sue; and when assumpsit was brought in the name of the provisional assignee, it was held, that the fact of the bankrupt's estate having been assigned by the provisional assignee to the new assignees, between the time of issuing the latitat and the delivery of the declaration, was no ground of nonsuit upon a plea of non assumpsit (f). When one of several partners becomes bankrupt, the action must be in the name of the solvent partner and the *assignees of the bankrupt (g) (44); but [*27] the Bankrupt Act (h) provides "that the Chancellor, upon petition, may authorize the assignees to use the name of the solvent partner without his consent, provided that such partner, if no benefit be claimed by him by virtue of the proceedings, shall be indemnified against costs, and upon petition the Chancellor may order that he shall receive his share of the proceeds of the action." The assignees of two partners, under separate commissions against each, may jointly sue for and recover a debt which was due to both the partners; but they cannot recover in the same action a joint debt due to both, and separate debts due to each of the partners (i). When there are several sets of assignees under separate commissions against partners, they may join in suing for a debt due to all the partners, but in such case the declaration should state what the several titles and interests of the plaintiffs are; and if they sue, describing themselves generally as assignees of the bankrupts, it will be a fatal variance (k); but where the plaintiffs sued "as assignees of A. and B. and also as assignees of C." for a joint demand due to the three bankrupts, the declaration was held sufficient, on a motion in arrest of judgment after verdict, since there was nothing upon the record to show that the plaintiffs did not claim under a joint commission against all, or under separate commissions against each of the bankrupts, in either of which cases the action is maintainable (1). Where there is a joint commission against two partners, the assignees may 1. PLAIN= recover in the same action debts due to the partners jointly, and also debts due TIFFS. to them separately (m); but when the plaintiffs sued as assignees under a joint 6. Bank- commission against two partners, and it appeared that only one had in fact r pty. committed an act of bankruptcy, it was held, the plaintiffs were not entitled to recover in respect of the interest of the partner who had become a bankrupt (n). The assignees under a joint commission against two partners in an action brought to recover a debt due to one of them, may, and indeed ought, to describe themselves in the declaration as assignees of such partner alone (o). [ *28] [*29] *When a contract is made with the assignees after the bankruptcy, it is not necessary that they should sue thereon in the character of assignees (p) ; though, where the sum to be recovered would belong to the estate, they may sue as assignees, as where they have lent or paid money in that character (q) ; but they cannot proceed in the same action both in their own right and as assignees (r) (45). There are some cases in which, notwithstanding the bankruptcy, an action may be brought in the name of the bankrupt himself. Thus, where the bankrupt, prior to his bankruptcy, has assigned over the beneficial interest in a chose in action to a third person, the action must be brought in the name of the bankrupt, and not of the assignees (s); for mere trust estates and interests do not pass by the assignment, but only property in which the bankrupt has an equitable or beneficial as well as legal title, and which may be made available towards the payment of his debts (t); but if the bankrupt retained any beneficial interest, though he had parted with the rest, it seems the assignees should sue (u). The bankrupt is also, in several instances, allowed to sue in his own name in respect of property acquired and contracts made by him after the bankruptcy and before he has obtained his certificate; for although the assignment gives to the assignees all property which may accrue in any way to the bankrupt before he obtains his certificate (x), it has been determined in many cases that such property does not vest absolutely in the assignees, although they have a right to claim it; but if they forbear from making any claim, the bankrupt has a right against all other persons, and may maintain actions accordingly (y). It has also been held, that where a third person has held out the bankrupt to the world as a party capable of doing a particular act which would confer a right of action upon another, as where he has made a promissory *note payable to the bankrupt or his order after the bankruptcy, he will be estopped from set (u) Id. (x) 6 Geo. 4, c. 16, s. 63, 64. (y) 2 B. & C. 293; 2 Stra. 1207; 7 T. R. 391; 2 B. & P. 44. Semble, the interference and claim of the assignees after action brought by the bankrupt would be sufficient to afford a defence, see 3 Moore, 612; and it seems a bankrupt cannot sue as to property acquired before the bankruptcy, though the assignees do not interfere, 1 C. & P. 147. (45) Upon the death of a sole assignee under the late bankrupt law of the United States, the right of action, for a debt due to the bankrupt, vested in the executor of the assignce. Richards and others v. The Maryland Insurance Company, 8 Cranch, 84. |