bankrupt (q); or carrying on business upon the premises (r); was decided to fix the assignees. So where the assignees took actual possession of leasehold premises, in which were goods of the bankrupt, but delivered them up as soon as the goods were sold (s); and in another case, where the bankrupt had a lease of premises, and also a reversionary interest in them, and the assignees sold all his estate and reversionary interest in the premises (t); it was holden that the assignees must be considered as having accepted the lease. A mere nominal dissent is not sufficient; and therefore, though an assignee by letter refuse to take the estate, yet if by acts he take advantage of it, he will still be bound (u). Where the assignees put up the premises to sell by auction, and there was a purchaser, and a deposit paid, but the contract of sale went off without the assignees showing why they did not enforce the sale, they were considered liable (r). And in another case, where they had placed a board up, with a view to dispose of the premises, they were holden liable in an action for use and occupation for a year's rent (y). But where the assignees advertised the lease, without stating themselves to be the owners or possessors, and no bidding offering, they never took actual possession of the premises, the Court of King's Bench held that the mere putting them up to sale did not necessarily bind them; because it might be only an experiment to ascertain their value (z). So where they allowed the effects to remain upon the premises for nearly twelve months after the bankruptcy; and for the purpose of preventing a distress paid the arrears of rent due, at the same time giving notice to the landlord that they did not intend to take the lease unless it could be advantageously disposed of; and afterwards having put up the lease to auction, and finding no bidders, never took actual possession of the premises, though they kept the key for nearly four months afterwards, the landlord having never demanded it; Lord Ellenborough held that they had not made themselves assignees of the lease (a). It has been also holden that a release of an under-tenant by the assignees of a bankrupt lessee, does not amount to an acceptance by them of the original lease (b). 4. OF CONTRACTS WITH THE ASSIGNEES OF AN INSOLVENT DEBTOR. The situation of these assignees is in many respects analogous to the position of the assignees of a bankrupt, in regard to the law of contracts (c). They are not liable to be sued at law by the creditors for dividends. In relation to contracts made by the insolvent after his petition, and before his final discharge (d), they appear to be subject, generally speaking, to the rules which apply to the instance of the contracts of an uncertificated bankrupt. And it seems that they cannot combine in the same declaration causes of action laid to accrue to them as assignees, with causes of action arising to them in their individual characters (e). By the 50th section of the Insolvent Act, 1 & 2 Vic. c. 110 (f), it is enacted, that if the prisoner shall be entitled to any lease or agreement for a lease (g), and his assignees shall accept the same and the benefit thereof, as part of such prisoner's estate and effects, they shall not be liable to pay any subsequent rent to which his discharge may not apply, nor be in any manner sued after such acceptance in respect of any subsequent non-observance or non-performance of the conditions, covenants, or agreements therein contained; provided that in all such cases the lessor, or person agreeing to make such lease, his heirs, executors, administrators, or assigns, if the said assignees shall decline, upon being required so to do, to determine whether they will or will not accept such lease or agreement for a lease, (b) Hall v. Dobie, 8 Taunt. 325; 2 Moore, S. C.; see Orr v. Morris, 6 Moore, 347. (c) They may sue as such for the recovery of debts due to the estate of the insolvent, without the consent of the creditors, though such assent is necessary to enable them to commence suits in equity. So they may com. pound for debts, or submit differences to arbitration, 1 & 2 Vic. c. 110, s. 51. The 37th section of that act pro tects them from liability for acts done under the provisions of the act, where the vesting order becomes void by the may apply to the court, praying that he may either so accept the same or deliver up such lease or agreement for a lease, and the possession of the premises demised or intended to be demised; and the said court shall thereupon make such order as in all the circumstances of the case shall seem meet and just, and such order shall be binding on all parties. We have already noticed the provisions as to leases in the case of the bankruptcy of the tenant (h). The above section it will be observed does not extend to insolvent debtors the privilege given to bankrupts, of delivering up their leases to their landlords, if their assignees decline accepting the same. So that an insolvent debtor, if his assignees decline accepting the lease, seems to remain liable to his lessor for rent which accrues after the appointment of the provisional assignee. There is reason to consider that the decisions before cited (i), in reference to the acceptance of a term, &c., by the assignees of a bankrupt, have equal application to the instance of the assignees of an insolvent debtor under similar circumstances (j). The assignees of an insolvent may recover, as money had and received, the proceeds of goods sold under an execution, and paid to the execution creditor, after the insolvent's imprisonment (k). 5.-OF CONTRACTS WITH EXECUTORS AND ADMINISTRATORS. It is hardly necessary to observe that a personal representative is not liable upon the contract of his testator, except to the extent of assets of the deceased, in the hands of the representative, applicable to the payment of the debt sought to be recovered, in reference to its degree or quality (7). (h) Ante, 265. (j) See Lindsay v. Limbert, 2 C. & (k) Guy v. Hitchcock, 5 Nev. & M. 660. (1) See in general Williams on Executors, and Toller on Executors. Executors and administrators may be sued in debt on simple contracts, 3 & 4 Will. 4, c. 42, s. 14; and they may sue for injuries to the real estate of the deceased, and may be sued for injuries by him to the real property of others, id. sec. 2. But independently of this statute where a party had worked into his neighbour's coal mine, and dug coal, which he sold, retaining the proceeds, and died intestate, it was held that such neighbour might waive the tort committed, and sue the administratrix for money had and received by the intestate, to recover the value of the coal so disposed of, Powell v. Rees, 2 N. & P. 591. They may sue lessee of testator for breach of covenant not to lop trees, &c. committed in the lifetime of testator, Raymond v. Fitch, 2 C., M. & R. 588; or on a contract for sale of land to testator, It is enacted by the statute of frauds, 29 Car. 2, c. 3, s. 4, that no action shall be brought whereby to charge an executor or administrator upon any special promise to answer damages out of his own estate; unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorised. In order to render an executor, &c., personally responsible for the demand against the testator, it is essential not only that the promise of the representative should be in writing and signed, but that there should exist some new and sufficient consideration for the engagement; as the forbearance to proceed against the promiser, &c. (m). The mere possession of assets seems not to be a sufficient consideration to charge the executor personally on his promise (n). It is said that the creditor's proof to the executor of the delivery of goods to the testator, is a sufficient consideration for this purpose (o). And it seems that the consideration for the promise must appear on the face of the memorandum (p); but it is not material for the creditor to show that the party had assets (q). It is peculiarly the province and within the ability of a court of equity to administer justice between all parties concerned, in the case of legacies, and the distributive share of an intestate's effects, to which his next of kin may be entitled. Therefore no action at law lies against an executor, as such, to recover a when the vendor cannot make out a good title, Orme v. Broughton, 4 M. & Scott, 417; 10 Bing. 533, S. C. If a creditor either by laches or express authority misleads an executor, in the admission of assets, so as to induce the executor to pursue a course which he otherwise would not have pursued, in the distribution of the testator's property, the creditor is precluded by his own conduct from complaining of an insufficiency of assets, Richards v. Brown, 3 Bing. N. C. 493; 4 Scott, 262, S. C.; where see instances of conduct of creditors held not to amount to laches or misleading. As to the liability of heirs and devisees, see 2 Saund. 136, 137, n. 4; 11 G. 4 & 1 W. 4, c. 47, 1 Chit. Pl., 6th ed. 21, 51. 3 & 4 W. 4, c. 104, making freehold and copy hold estates equitable assets, for the payment of simple contract or specialty debts. (m) Rann v. Hughes, 7 T. R. 350, note; 7 Bro. P. C. 550, S. C.; Parish v. Wilson, Peak R. 73; Forth v. Stanton, 1 Saund. 210, n. 1; Barber v. For, 2 Saund. 136; Philpot v. Briant, 4 Bing. 717; M. & P. 754, S. C. (n) See per Grose, J., Deeks v. Strutt, 5 T. R. 693. (0) Howel and Trevanian's Case, 1 Leon. 93; Lawson v. Crofts, 1 Sid. 57; Loo v. Burdens, id. 369. See ante, 33. (p) See post, "Frauds, Statute of," Index. (9) Forth v. Stanton, 1 Saund. 210, n. 1; William Bane's Case, 1 Co. R. 94. legacy (r); nor against an administrator in that character, to recover such distributive share (s), although either make an express promise to pay the money. But a personal liability may be created even as to such demands, if the personal representative admit the claim, and expressly, and in writing, promise payment, upon a fresh consideration, as forbearance, &c. (t). Thus where an executor agrees with a legatee to allow him interest on his legacy, if he would permit it to remain in his hands; the legacy becomes a loan to the executor, for which he is personally liable, and may be sued at law, and plenè administravit would be no plea to an action against him (u). And where A. bequeathed to B. 12007., and appointed C. executor of her will, and C. had sufficient assets but did not pay the legacy to B., and C. afterwards made his will, by which he bequeathed to B. an annuity of 7001., and expressed it to be in satisfaction of the debt or sum of 12007. " which I stand indebted to her for a legacy, &c., but which annuity B. did not accept;" it was held by Dallas, C. J., that the 12007. was money had and received to the use of B., and might be recovered as such in an action (x). And where the plaintiff and three others were residuary legatees under the will of T. P., and the defendants as the executors accounted with them, and having paid to three other legatees the respective sums due to them, took from them and the plaintiff a release, but did not pay the plaintiff his share, he having consented to allow it to remain in their hands; it was decided that as the money was not retained by the defendants in their character of executors, the plaintiff might recover it in an action at law (y). So where an executor called a meeting of the several legatees under a will, at which A. B. the plaintiff, one of such legatees, was present, and the executor exhibited an account charging himself (r) Deeks v. Strult, 5 T. R. 690; Jones v. Tanner, 7 B. & C. 544; Gregory v. Harman, 1 M. & P. 209. Ejectment lies by the legatee of a term of years in land to recover the premises after the executors' assent to the bequest; Doe d. Saye and Sele v. Guy, 3 East, 120; see Webb v. Jiggs, 4 M. & Selw. 113; and see Richardson v. Gifford, 3 Nev. & M. 325. (s) Jones v. Tanner, 7 B. & C. 542. (t) See the above authorities, and see 2 Wms. Executors, 2nd ed. 1374, 1375. (u) Wasney v. Earnshaw, 4 Tyr. 806. In an action against an executor on an account stated, it is competent for the plaintiff to impeach any particular item on the credit side of the account, Rose v. Savory, 2 Scott, 199; 1 Hodges, 269, S. C. The part payment of a legacy on account is not an admission of assets to pay in full, Smith v. Stothard, 1 Jurist, 540. (x) Gorton v. Dyson, Gowl. R. 78; 1 B. & B. 219, S. Č. but not S. P. (y) Gregory v. Harmun, 1 M. & P. 209. |