ing; for they have but one authority given them by the bishop over the goods: which authority, being given to many is to be executed by all of them joined together. But it is otherwise in respect to co-executors; these being in law but one person, therefore the act of one is the act of them all, and the possession of one is accounted the possession of all.

An administrator, by virtue of his administration, hath interest in all the chattels, real and personal, of the intestate, and all the goods and chattels, either in possession or action a, in like manner as an executor in the goods of the testator deceased. And all those goods and chattels which belonged to the intestate at the time of his death, and which came to the hands of the administrator, shall be assets, or sufficient goods and chattels, to make him chargeable to creditors, as executors are to creditors and legatees. But before they come to his hands he is not chargeable, as we shall see more of hereafter. An executor or an administrator shall regularly charge others for any debt or duty due to the deceased, as the deceased himself might have done; and the same actions the deceased might have had, the same actions, for the most part, the executor or administrator may have also. But an executor or administrator shall not charge another, or have any action against him for a personal wrong done

b Lord Bacon's Tracts, 162. 1 Atk. 460.

C Swinb. 328.

d For the particulars of these, see post.

e Wood's Inst. new edit. 339.
f See post.

"strong, that they ought not to be departed from. The "other Judges were inclined to the same opinion, but as the

66

case was new, and of general consequence, they ordered "it to be argued again. According to Sir John Strange, "M. R. in Jacomb v. Harwood, 2 Ves. 267. the case was "decided in the affirmative after the third argument; but "from a MS. note in my possession, it appears to have been "compromised before the third argument took place. In "Mr. J. Gundry's MS. note, 13 Gundr. 33. a. it is said to "have been adjudged for defendant; that is, that the release "of one administrator did bind his companion."

to the testator, when the wrong done to his person, or that which is his, is of that nature for which damages only are to be recovered: and therefore an executor or administrator cannot sue another for beating or wounding of the deceased %.

In actions merely personal, arising ex delicto, for wrongs actually done or committed by the defendant, as trespass, battery and slander, the rule is actio personalis moritur cum persona, that a personal action dies with the person; and it never shall be revived, either by or against the executors, or other representatives. For neither the executors of the plaintiff have received, nor those of the defendant have committed in their own personal capacity, any manner of wrong or injury (2). But in actions arising ex contractu, by breach

Shep. Touch. 459.

(2) Executors and administrators being the representatives of the temporal property only, that is, the debts and goods of the deceased, but not of their injuries, it seems to follow, that their right of maintaining an action in the cases of a personal wrong arising out of the breach of an express or implied contract, depends upon whether there has been an injury to the personal estate of the testator or intestate, or whether the damage consisted only in previous personal suffering. In the latter case, where the injury affects the life or health of the deceased merely, as if it arise out of the unskilfulness of a medical practitioner, or the cause of complaint be the imprisonment of the party brought about by the negligence of his attorney; these, although breaches of the implied promise, by the persons employed to exhibit a proper portion of skill and attention, cannot be made the foundation of an action by a personal representative. So in the case of a personal wrong arising out of the breach of an express contract, as a promise of marriage, an action will not lie by an administrator, unless the intestate had actually been damnified in her property by reason of the breach of the contract. Chamberlain v. Williamson, 2 Mau. & Selw. 408. But if the wrongs have operated to the temporal injury of the personal estate; as, for example, if, in the instance last cited, the loss of marriage occasioned a strict pecuniary detriment

of promise and the like, where the right descends to the representatives of the plaintiff, and those of the defendant have assets to answer the demand, though the suits shall abate by the death of the parties, yet they may be revived against, or by, the executors or administrators; being indeed rather actions against the property, than the person, in which the executors, or administrators, have now the same interest that the testator or intestate had before".

By the statute 31 Edw. III. before mentioned, administrators shall have an action to demand and recover, as executors, the debts due to the intestate. So if a man take from the executor or administrator the goods of the deceased, for this they must bring their action at common law ; for they cannot sue for the goods of the deceased in a court ecclesiastical. And tenants may be sued at the common law by executors or administrators for rent behind, and due to the testator or intestate in his lifetime, or at the time of his death; and they may for the same distrain the land charged with the rent; and where the testator or intestate is tenant for life only, his executors or administrators may have an action at law for rent that did not become due till k Swinb. 18.

h 3 Black. Com. 302.

i Swinb. 18. 10 Mod. 21.

to the intestate, then, in respect to that detriment, the administrator would have become legally privy to the injury, and an action bottomed on the promise would have been sustainable by him. Id. ibid. In like manner, if a person contracts with a coach proprietor to be safely and securely carried from one place to another, and through the negligence of the servant of such proprietor the coach be overturned, in consequence of which the passenger so contracting dislocates or fractures a limb, and owing to his confinement in procuring a cure, his personal property sustains an injury; although he, during his life, might sue the proprietor in assumpsit or tort, still his representative may, after his death, maintain an action on the contract to carry him safely, and recover damages for the injury which has accrued to his estate from the breach thereof. Knights v. Quarles, 4 B. Moore, 541.

the death of such testator or intestate, as will be shewn after we have pointed out some particular rents that, being due to the testator or intestate in his lifetime, may be obtained by the executors or administrators, by action at law or distress.

By the statute 32 Hen. VIII. c. 37. sect. 1. after reciting that by the order of the common law, the executors or administrators of tenants in fee-simple, tenants in fee-tail, and tenants for term of life, of rent-services, rent-charges, rentsecks, and fee-farms, had no remedy to recover such arrears of the said rents or fee-farms as were due unto the testators in their lives, nor yet the heirs of such testator, nor any person having the reversion of his estate after his decease: it is enacted, that the executors or administrators of tenants in fee-simple, tenants in fee-tail, and tenants for term of life, of rents-services, rent-charges, rent-secks, and fee-farms, unto whom any such rent or fee-farm be due, shall have an action of debt for such arrears against the tenants who ought to have paid in the lifetime of their testator, or against their executors or administrators; or may distrain for the arrears on the land, or other hereditaments chargeable therewith (3), so long as the lands, or other hereditaments, continue in the seisin or possession of the tenant in demesne; who ought immediately to have paid the rent or feefarm, or the seisin or possession of any other person claiming only from the same tenant, by purchase, gift, or descent, in like manner as their testator might have done.

Tenants in fee-simple, fee-tail, or for term of life, are those who hold any messuages, lands, or tenements, in feesimple, fee-tail, or for term of life 1; and as they may hold

1 52 Black. Com. 59.

(3) In avowing for rent under this statute, it has been held, that the avowant need not set out the title of the testator or intestate, nor shew that he was entitled to distrain. Meriton v. Gilbee, 2 B. Moore, 48. Martin v. Burton, 3 B. Moore, 608. See also Lingham v. Warren, 4 B. Moore, 409.

any messuages, lands, or tenements, in this manner, so they may rent-service, rent-charge, rent-seck, and fee-farm or feefarm rent; which are called incorporeal hereditaments, as being a right issuing out of a thing corporate, though not the thing itself, but something collateral thereto, which may be lands or houses m. Rent-service is so called, because it hath some corporeal service incident to it, as at the least fealty, or the feodal oath of fidelity. For, if a tenant holds his land by fealty, and ten shillings rent; or by service of plowing the lord's land, and five shillings rent; these pecuniary rents, being connected with personal services, are therefore called rent service". A rent charge is where the owner of the rent hath no future interest or reversion expectant in the land; as where a man by deed maketh over to others his whole estate in fee-simple, with a certain rent payable thereout, and adds to the deed a covenant or clause of distress, that if the rent be arrear, or behind, it shall be lawful to distrain for the same. In this case the land is liable to distress, not of common right, but by virtue of the clause in the deed: and therefore it is called a rentcharge; because in this manner the land is charged with a distress for the payment of it. Rent-seck, reditus siccus, or barren rent, is in effect nothing more than a rent reserved by deed, but without any clause of distress P. A fee-farm rent is a rent-charge issuing out of an estate in fee; of at least one-fourth of the value of the lands, at the time of the reservation: for a grant of lands, reserving so considerable a rent, is indeed only letting lands to farm in feesimple, instead of the usual method for life or years ¶.

The word demesne, or as it is sometimes called, demeine, or demain, is oft-times used for a distinction between those lands that the lord of the manor hath in his own hands, or

2 Black. Com. 20.

" Ibid. 42.

• Ibid.

P Ibid.

Ibid. 43. The learned author of the Notes on Co. Litt. says, the

true meaning of fee-farm, is a perpetual farm or rent; the name being founded on the perpetuity of the rent or service; not on the quantum. Co. Litt. 144. Note 5. 13 Edit.