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 (r).

By the 23rd section of the Insolvent Act, 7 G. 4, c. 57 (s), it is enacted, that if the prisoner shall be entitled to any lease or agreement for a lease, and his assignee shall not accept the same, and the benefit thereof, as part of such prisoner's estate and effects, the prisoner 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 assignee shall decline, upon his being required so to do, to determine whether he will or will not accept such lease or agreement for a lease, 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 demanded, or intended to be demanded; 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.

There is reason to consider that the decisions before cited (†), 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 (u).

A person who has given in on oath, a schedule, purporting to contain a statement of all his debts and credits, to the Insolvent Debtors' Court, cannot afterwards claim a debt which accrued before the schedule was made out and given in, but which is not noticed therein (x).

(r) Richardson v. Griffin, 5 M. & Selw. 297.

(s) See the observations upon the similar provision in the bankrupt act, unte, 213.

(1) Ante 214.

(u) See Lindsay v. Limbert, 2 C. & P. 526; 12 Moore, 209, S. C. Doe d. Palmer v. Andrews, 4 Bing. 348; 12 Moore, 601, S. C.

(x) Nicholls v. Downs, 1 Moody & Robinson, 13.

5thly. OF CONTRACTS WITH EXECUTORS AND ADMINIS

TRATORS.

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 (y).

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. (z). The mere possession of assets seems not to be a sufficient consideration to charge the executor personally on his promise (a). 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 (6). And it seems that the consideration for the promise must appear on the face of the memorandum (c); but it is not material for the creditor to shew that the party had assets (d).

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

(y) See, in general, Williams on Executors, and Toller on Executors. As to the liability of heirs and devisees, see 2 Saund. 136, 137, n. 4; 1 Chitty Pl. 5th ed. 59, 526, 527; 3 & 4 W. 4, c. 104.

(z) 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. Fox, 2 Saund. 136; Philpot v. Briant,

4 Bing. 717; 1 M. & P. 754, S. C.

(a) See per Grose, J., Deeks v. Strutt, 5 T. R. 693.

(b) Howel and Trevanian's Case, 1 Leon. 93; Lawson v. Crofts, 1 Sid. 57; Loo v. Burdens, id., 369. See ante, 28.

(c) See post, "Frauds, Statute of,” Index.

(d) Forth v. Stanton, 1 Saund. 210, n.1; William Bane's Case, 1 Co. R. 94.

legacy (e); nor against an administrator in that character, to recover such distributive share (f); 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. (g). 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 7007., 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 1200l. was money had and received to the use of B., and might be recovered as such in an action (h). 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 (i).

In a late case (j), the liability of an executor upon a lease granted to his testator, for rent accruing after the testator's death, was much discussed. Denman, C. J., in delivering the judgment of the Court, said, "The executor of a termor cannot waive a term, but must either renounce or accept the executorship in toto, and if he accept the executorship, and enter upon the demised premises, he is chargeable as assignee in an action of debt, or covenant, for the arrears of rent due after his entry, de bonis propriis. But, as the rent may be of greater value than the land, it would be a hardship upon the executor in that case to charge him personally in his own right with the full amount of the rent; and

from the authorities, it is clear that he is not so chargeable,

But

then arises the question, whether he is personally liable in that event as assignee for no part of the rent, considering it as an entire thing, for the whole of which he must be so liable or not at all; or whether the rent can be apportioned, and he is liable, in the character of assignee, for so much of the rent as the premises are worth. Upon reference to the authorities, it seems that the rent is in this case to be apportioned, and that the executor is chargeable personally for so much of the rent as the premises are worth."

It has been decided that the promise of an executor to pay a debt, "whenever sufficient effects are received from the estate of the deceased," must be understood to mean sufficient effects in the ordinary course of administration (k).

If executors neglect to give orders for the funeral of the testator, and have sufficient assets for that purpose, they are liable as such, upon an implied promise, to the person who furnishes the funeral in a manner suitable to the testator's degree and circumstances (7). And if they indorse a bill or note, they are personally responsible thereon, although the instrument was vested in, and transferred by them, in their representative character (m). And an executor, who makes a promissory note, whereby he promises, "as executor," to pay a sum of money "with interest, on demand," is personally liable thereon, without reference to assets (n). So an executor who, as such, submits a dispute to arbitration, thereby admits assets, and becomes personally liable upon the award (o).

Whenever money due on a contract with an executor will, when recovered, be assets, he may declare for it in his representative capacity (p). Therefore an executor may sue and declare, as such, on a note indorsed to him in that character (q); or for goods

(k) Bowerbank v. Monteiro, 4 Taunt. 844; see further, Pearson v. Henry, 5 T. R. 8, per Buller, J.; Hindsley v. Russell, 12 East, 232.

(1) Tugwell v. Heyman, 3 Camp. 298; Rogers v. Price, as executor, 3 Y. & J. 28.

(m) King v. Thom, 1 T. R. 489. (n) Child v. Monins, 5 Moore R. 282. The defendant pleaded plene administravit, but did not aver that he had not assets when the note was given. But semble such averment would not have aided him. The Court considered, that as the note was pay

able, with interest, on demand, there was the consideration of giving time, which would render the defendant personally liable.

(0) Riddell v. Sutton, 5 Bing. 200; 2 M. & P. 345, S. C.

(p) 1 Chitty Pl. 5th ed. 233. See Wirral v. Brand, 2 Lev. 165; Cowell v. Watts, 6 East, 405; Thompson v. Stent, 1 Taunt. 322; Wigley v. Ashton, 3 B. & Ald. 101; Powley v. Newton, 2 Marsh. 147; 6 Taunt. 456, S. C.

(q) King v. Thom, 1 T. R. 487.

sold by him after the testator's death, and which belonged to the testator (r); or for goods sold by the executor in that character, in the course of carrying on and continuing, as executor, the testator's business after his decease, although the goods were acquired by the executor after the death, provided they formed part of the assets (s); or for money paid by him as executor (t); or for money had and received to his use as such (u); or upon an account stated with him, concerning monies due to the testator, or to the plaintiff as executor (x); and perhaps an executor may sue as such for money lent by him, in his representative character, out of the assets, there being left sufficient for payment of debts, &c. (y).

An executor may, it seems, be sued in that character for money paid (2) for his use therein; but not for money lent to, or had and received by, him, as such (a). And a count, on an account stated by a defendant as executor, respecting monies due from the testator, or from the defendant as executor, may be supported and joined with counts on promises by the testator (b).

6thly. OF THE CONTRACTS OF CORPORATIONS.

Corporations have, like individuals, the power to contract; but their agreements and grants must, in general, be under their corporate seal (c); and such seal must be affixed with intent to

(r) Cowell v. Watts, 6 East, 405. (s) Aspinall v. Wake, 10 Bing. 57. (1) Ord v. Fenwick, 3 East, 104. (u) Petrie v. Hannay, 3 T. R. 659; Foxwist v. Tremaine, 2 Saund. 207, 208, 117, c.

(x) Henshall v. Roberts, 5 East, 150; Cowell v. Watts, 6 East, 406, 403; Thompson v. Stent, 1 Taunt. 322; 1 Chitty Pl. 5th ed. 233. In an action for a debt due to the deceased, there may be introduced into the declaration, a count, laying a promise to the plaintiff as executor to pay a debt laid to be due to the executor as such. If a plaintiff executor fail in the action, he is, primâ facie, liable to costs, although he sues strictly as executor, and lays promises to the deceased only. See 3 & 4 W. 4, c. 42, s. 31; Jobson v. Forster, 1 B. & Ad. 6; Slater v. Lawson, id., 893. It is necessary to insert a count on a promise to the plaintiff as executor, in order to be

entitled to prove a promise to him, after the testator's death. Sarrell v. Wine, 3 East, 409; Ward v. Hunter, 6 Taunt. 210; Pittam v. Forster, 1 B. & C. 248; 2 D. & R. 363, S. C. An executor defendant has no privilege as to costs, Tidd, 9th ed. 979.

(y) See Webster v. Spencer, 3 B. & Ald. 360; Richardson v. Griffin, 2 Chitty R. 325.

(2) Ashby v. Ashby, 7 B. & C. 444. (a) Id.; Coryton v. Lithebye, 2 Saund. 117 d; Jennings v. Newam, 4T. R.347; Rose v. Dowler, 1 H. Bla. 108; see Meert v. Moessand, 1 M. & P. 8.

(b) Powell v. Graham, 7 Taunt. 580; 1 Moore, 305, S. C.; Ashby v. Ashby, 7 B. & C. 444.

(c) Bac. Ab., Corporations (E), 3; Rex v. Bigg, 3 P. Wms. 432, 434; The King v. The Inhabitants of Chipping Norton, 5 East, 239; Yarborough v. The Bank of England, 16 East, 11.