II. DEFENDANTS sued as such for money lent to (y), or had and received by him (z), or upon a penal statute (zz). By the Statute against Frauds the represen- 5. Execu tatives of a deceased person are not personally liable without a written tors, heirs, promise, and even such promise is not available in this respect, unless there &c. be an adequate consideration (a) (1); but in some cases executors will render themselves personally liable, if they contract as principals, and on their own personal liability (b). If a creditor appoint his debtor to be his executor, such voluntary act is deemed a release at law; but when a debtor becomes administrator, such appointment being only by an act of Court, and not of the creditor himself, it merely suspends the right (c). If the contract be under seal, (or of record), the heir of the party contracting is liable to an action for the breach of an express covenant therein; provided the ancestor expressly bound himself " and his heirs," by the deed or obligation; and provided the heir have legal assets by descent from the obligor (d) (2). And if there be a devisee, (otherwise than for the payment of debts, or in pursuance of a marriage contract entered into before marriage,) he may be sued in an action of debt for the breach of a contract of the testator under seal, or of record; but the heir must be joined in the action; and an action of covenant cannot in any case be supported upon a personal contract against a devisee, the statute 3 & 4 W. & M. only giving an action of debt (e). Though the devisee be an infant, he cannot pray the parol to demur by reason of his non-age (3), such privilege being confined to an infant heir (f). But an equity of redemption is not assets at law, in respect of which an heir or devisee is chargeable, and the creditor must proceed in a Court of Equity [ *53 ] (g). An heir or devisee having a legal estate, is liable to an action for the breach of a covenant running with the land committed in his own time (h). If there be several heirs as in the case of gavel-kind, or of parceners, they should all be joined, or the defendant may plead in abatement (i) (4); and a devisee must be sued with the heir jointly at law as (y) 1 Hen. Bla. 119; 2 Saund. 117 d; 4 T. R. 347. As to suing him as such, for funeral expenses, see 3 Campb. 298; or money paid, see 7 B. & C. 444, 449; 1 Man. & R. 180, S. C.; account stated, 7 Taunt. 580; 1 Moore, 305, S. C. (z) 7 B. & C. 444; 1 Man. & R. 180, S. C. (zz) Carth. 361; Cro. Eliz. 766; Com. Dig. administrator, B. 15. (a) See 7 T. R. 350; 3 B. & B. 460. (c) See Went. Off. Ex. chap. 2, p. 76, 14 ed. Needham's case, 8 Coke R. 136; Wankford v. Wankford, 1 Salk. 306; Crosman's case, 1 Leonard, 326. (d) Bac. Ab. Heir and Ancestor, F.; 2 Saund. 136, 137, n. 4; Plowd. 439, 441; Willes. 585; 2 Bla. Com. 243; Platt on Cov. 41, 449. (e) 3 & 4 W. & M. c. 14; Bac. Ab. Heir and Ancestor, F.; 1 P. Wms. 99; 7 East, 128. (f) 4 East, 485. (g) 2 Saund. 7, n. 4. 8 d, 5th ed. (h) If only equitable estate descend, the heir cannot be sued at law, per Lord Hardwicke, Plunkett v. Pearson, 2 Atk. 294. (i) 2 Vin. Ab. 67; Com. Dig. Abatement, F. 9. (1) Such as giving up securities against the testator's estate. Stebbins v. Smith, 4 Pick 97. See Clark v. Herring, 5 Binn. 33. (2) So, the heir of the heir is liable so far as he has assets by descent from the original obligor, Walker v. Ellis, 2 Mun. 88. In the state of New York, heirs are liable on a simple contract of specialty, whether mentioned therein or not, in case the debtor died intestate seized of lands, &c. and the heirs of devisees in case he made a will. Laws of N. Y. sess. 36, c. 93, s. 1; 1 R. L. 316; Rev. Stat. 452, s. 82; Etting v. Vanderlyn, 4 John. 234. (3) In the State of New York, in a personal action against either heirs or devisees, the paro. shall not demur; but no execution shall issue within a year after rendition of judgment, sess. 86, c. 93, s. 6. 1 R. L. 318; 2 Rev. Stat. 454, s.42, 455, s. 55. (4) Heirs, and assigns by deed, are jointly chargeable for breach of a covenant real of their ancestors. Morse v. Aldrich, 1 Metcalf, 514. II. DEFENDANTS. 5. Executors, heirs, &c. 6thly. In the case of well as in equity (k). And though an executor cannot in any case be sued jointly with the heir () (1) yet the executor may be sued at the same time as the heir, and if the heir be also executor, separate actions may be sustained against him in both capacities (m). If assets by descents vest in the heir, it appears that the charge will continue to run against his heir taking the same assets (n). When the contracting party has become bankrupt and has obtained his certificate, he is in general no longer liable to be sued in respect of any bankruptcy. debt due from him when he became bankrupt, or of any claim or demand which the creditor might have proved under the commission (o) (2). The present Bankrupt Act enables creditors to prove under the commission in respect to contingent debts, although the contingency had not happened at the time of the proof (p); consequently such debts will not be barred by the certificate as effectually as other debts. In cases where the plaintiff has an election to sue either in form ex contractu or in tort (3) though the bankruptcy will be no answer to the latter mode of proceeding (q), it will be a bar to any action founded on contract if the amount of the plaintiff's demand was capable of being ascertained at the time of the bankruptcy (r), and might have been proved under the commissions (4). There are also some demands which are barred by the certificate though they were not provable under the commission. Thus, where an action upon a contract has been brought against a party, and he becomes bankrupt before verdict, the costs in such actions, for want of a previous verdict, and not provable under the commission, but they are notwithstanding considered as accessorial to the original debt and barred together with such debt by the certificate (s) (5). But in certain cases the bankrupt may still remain liable to an action *54] in respect of contracts made before his bankruptcy. Leasehold *property belonging to the bankrupt does not pass to the assignees unless they elect to take it. By the 6 Geo. 4, c. 16, s. 75, the bankrupt is enabled to free himself from future liability upon the lease by delivering it up to the lessor within fourteen days after he shall have had notice that the assignees have declined to accept the same; but unless he avail himself of this privi lege, he will still continue subject to such liability. (k) 2 Saund. 7 n. 4; Bac. Ab. Heir; Vin. (1) 18 Edw, 3, 4; Com. Dig. Abatemer.t, (n) Dyer, 368 a, pl. 46; Cro. Car. 151; 2 (o) 6 Geo. 4, c. 16, s. 121. (q) Doug. 583; 6 T. R. 695; 5 Bing. 63. (s) 3 M. & Sel. 326; 2 B. & B. 8; see also 3 B. & A. 13; Eden. 2d edit. 136; 7 B. & C. 436, 706; 1 Man. & R. 330, S. C. (1) Under the Pennsylvania act of 1836, devisees and heirs may be joined in an action against the executor, and if the writ issue directing notice generally, notice given to an heir or devisee makes him party. Norris v. Johnston, 5 Barr, 287. Heirs and assigns by deed are jointly liable for a breach of covenant real of their ancestor. Morse v. Aldrich, 1 Metcalf, 544. (2) So, the discharge of an insolvent is no bar to an action, on an express covenant, brought to recover rent accruing subsequent to the insolvent's discharge. Lansing v. Prendergast, 9 John. 127. See Murray v. De Rottenham, 6 John. Ch. 63; Hamilton v. Atherton, 1 Ashm. 67. (3) Denied by Livingston, J. Hatton v. Speyer, 1 John. 41, 42. (4) See Dufar v. Murgatroyd, 1 Wash. C. C. 15. (5) Costs on a judgment obtained before the discharge of an insolvent, although not taxed, are barred by the discharge. Warne v. Constant, 5 John. 135. Sed vide cases cited in note b. Ibid. See the cases cited, Ingraham's Insolvent Laws of Pennsylvania, 171, note, 2d edit. The bankrupt may also revive his liability upon a contract made before his bankruptcy, by a subsequent promise to pay the debt (1); which promise, it appears, will in general be equally available to the creditor, whether made before (2) or after (3) the allowance of the certificate (†). But it should be observed, that promises and contracts made with the creditor expressly in consideration of his signing the certificate; and also promises made before the signing the certificate to a creditor who was one of the commissioners, and who subsequently signed the certificate, would be void, in the former case, under the express provisions of the Bankrupt Act (u), and in the latter, as being against public policy (x) (4). In order that the pre-existing obligation should be revived by a subsequent promise, the promise should be express, distinct, and unequivocal (y); and by the provision of the present Bankrupt Act, such promise must be in writing, signed by the bankrupt, or by some person thereto lawfully authorized in writing by him (z). When the subsequent promise is effectual, it is sufficient to declare upon the original consideration (a) (5); unless the promise be conditional, in which case it seems to be necessary for the creditor to declare specially (b). In cases where a party becomes bankrupt after a former bankruptcy, a prior discharge under an insolvent act, or after a composition with his creditors, the certificate only extends to protect his person, and his future effects are liable to the claims of his creditors, unless he pay 15s. in the pound. And before the late Bankrupt Act, the bankrupt was still liable to be sued in respect of his subsequently acquired effects (c); but by the provisions of that Act, the future estate and effects of the bankrupt are Jeclared to vest in the assignment under the second commission (d). II. DEFENDANTS 6 Bank ruptcy. Where there are several contracting parties, and one has been bankrupt, the action should be brought jointly against the solvent partner or partners and the bankrupt, and if the latter should have obtained his certificate, and should plead it, a nolle prosequi may be entered as against him (e). *The following points, relative to the liability of the assignees of a bank- [ *55 ] rupt to action in form ex contractu, may here be noticed. No action can be brought by any creditor against the assignees for the recovery of any (1) Shippey v. Henderson, 14 John. 178. An action cannot be maintained by the assignee of a note payable to bearer directly on the note, when the negotiability of such note has been destroyed by an insolvent discharge granted the maker. Moore v. Viele, 4 Wend. 420. Nor can such assignee avail himself of a new promise subsequent to that discharge, if made neither to himself nor his agent. Ib. (2) Kingston v. Wharton, 2 Serg. & R. 208. (3) Maxim v. Morse, 8 Mass. 127. A promise by a debtor after the execution of a voluntary release under seal by the creditor, at the debtor's request, to pay the balance of the debt, is founded on a sufficient consideration, and is binding. Willing v. Peters, 12 Serg. & R. 177. The promise must, however, be express, and be distinctly proved. Roff v. Roff, 1 Penn. 418. (4) See Baker v. Matlach, 1 Ashm. 68. Tuxbury v. Miller, 19 John. 311; Wiggin v. Bush, 12 John. 306, and the American cases there cited. (5) Shippey v. Henderson, 14 John. 178. II. DEFENDANTS. 6. Bank ruptcy. 7thly. In the case of an insolvent debtor. [ *56 ] dividend (1), the only remedy being by petition to the Lord Chancellor (ƒ). Nor are the assignees liable to an action at the suit of the bankrupt, for his allowance in respect of the amount of dividends paid under his estate (g), unless he shall have obtained is certificate before the declaration and payment of the dividend, so as to enable the assignees to take such allowance into account, and to retain for the same before the assets are exhausted (h). It has been previously noticed, that assignees of a bankrupt lessee will not be liable to be sued in respect of the rent and covenant, unless they elect to take to the premises comprised in the lease (i). And when they have elected to take possession, they may nevertheless discharge themselves from future liability, by assigning their interest in the premises even to a pauper (k). The assignees are not liable to be sued by the messenger under the commission, for fees due to him before the choice of assignees, the petitioning creditor being the party answerable for these expenses (7). And though assignees cannot contract debts in their political capacity, and be sued therein as such (m); yet when they personally contract, or when they receive money to the use of another (n), they are liable to be sued in their individual capacities. An assignee who has been removed, and has assigned his interest to his co-assignee, may be sued by them (o). A certificate of discharge obtained in a foreign country, is a bar to an action upon a contract made in such country before the certificate (p) (2), but not to an action by a creditor, a subject of this country, for a debt contracted here (q). And it has been decided, that a certificate under an Irish Commission of bankruptcy, though it be since the Union, is no discharge of a debt contracted in England (r); but it has been held, that a debt contracted in this country, by a trader resident in Scotland, is barred by a discharge under a Scottish sequestration, issued in conformity to the Statute 54 Geo. 3, c. 137 (s). By the Insolvent Act (t), an insolvent complying with the requisitions of the Act is to be discharged by the Court, "as the several debts and sums of money due, or claimed to be due, at the time of filing his petition from such prisoners, to the several persons named in his or her schedule as creditors, or claiming to be creditors for the same, respectively, or for which such persons shall have given credit to such prisoner, before the time of filing such petition, and which were then not payable; and as to the claims of all other persons not known to such prisoner at the time (f) 6 Geo. 4, c. 16, s. 111. (g) Id. s. 128. (h) 1 Atk. 207; 6 T. R. 545; ante, 26. (k) 1 B. & P. 21; ante, 48, 49. (1) 3 B. & C. 43; 4 D. & R. 621, S. C.; 6 (1) Vide Peck v. Randall, 1 John. 165. (n) 1 M. & Sel. 714. (0) 1 Peake N. P. 213. (r) 4 B. & Ald. 624; and see 2 H. Bla. 558. (s) 3 B. & C. 12; 3 D. & R. 558, S. C.; see 1 Rose, 462; Buck, 57; 3 Moore, 623. (t) 7 Geo. 4, c. 57, s. 40 and 46; continued and amended by 1 Wm. 4, c. 38. A discharge under this act must be pleaded specially, 10 Bing. 11. (2) Vide Hicks v. Brown, 12 John. 288, n. b. Smith v. Brown, 2 Binn. 201. Walsh Farrand, 13 Mass. 19. of such adjudication, who may be indorsers or holders of any negotiable security set forth in such schedule" (u). And by section 50 it is provided, that the discharge shall extend to all process for contempt of any Court for non-payment of money (1,) and to all costs relative thereto; also to all costs incurred in any actions brought against the insolvent before the filing of his schedule for any debt or damages; and the persons bringing actions are to be deemed creditors for the amount of such costs subject to taxation. The discharge is also declared to extend to sums payable by way of annuity (x). II. DEFENDANTS. 7. Insol vency. It has been decided upon the 1 Geo. 4, c. 119, that the effect of the discharge is only to liberate the insolvent to the extent of the specific debts described in the schedule; and where less than the full amount due is specified, the balance in favor of the creditor still remains as a debt for which the insolvent is liable (y). But by the 7 Geo. 4, c. 57, s. 63, it is provided, that the discharge shall protect the insolvent, although there has been an error in the amount of the debt specified in the schedule, where there has been no culpable negligence, fraud or evil intention on the part [ *57 ] of such prisoner (z). Formerly an insolvent was only considered to be discharged as to his person, and he remained liable to be sued as to his subsequently acquired effects by the creditors named in the schedule; but it is now provided, that no future execution shall issue against the goods of a prisoner discharged, upon any judgment for any debt in respect of which such prisoner shall have become entitled to the benefit of the Act; nor in any action upon any new contract or security for payment thereof except upon the judgment entered up against such prisoner, in the name of the as (u) See as to holders of negotiable securities, and what a sufficient description of the debt, &c. in the schedule; 4 B. & C. 15; 6 D. & R. 75, S. C.; 4 B. & C. 214; Ry. & Mo. 322; 2 Car. & P. 122; 1 Mo. & Mal. 202; 3 Stark. R. 54; 3 Moore, 231. Under the 37 Geo. 3, c. 90, s. 30, it was held that a person is only discharged as to those creditors to whom he has given notice of his intention to apply for his discharge, 1 Chitty's Rep. 222; but such notice is no longer essential. The 53 Geo. 3, c. 102, s. 10, directed that the order of discharge should name the creditors as to whose claim the prisoner should be discharged, 7 Taunt. 179; but this is no longer necessary, and it suffices, if the schedule name the creditor or the debt as distinctly as the debtor can do, which is still necessary. With respect to the necessity of naming the creditor in the schedule, it is observable that the 40th and 46th sections require that the name of the creditor be named if possible, but suppose the difficulty of stating such creditor in the case of negotiable security. Under the 1 Geo. 4, c. 119, s. 50, (nearly corresponding in terms with the above,) where an insolvent contracted for goods with A. the agent for a company, and after giving him two promissory notes for the debt, amounting to £82 2s. 6d. took the benefit of the Act, without describing the company as his And if an insolvent state a bill in his (x) Sect. 61. See, as to the construction (y) 4 B. & C. 419; 6 D. & R. 491, S. C. (1) Maag's Case, 1 Ashm. 97. |