CH. 9. Art. 19. 5. If the executor or administrator recover judgment for a debt due to the deceased, he may sue that judgment in his own name, and if he declare in auter droit, it is but surplusage. This was a foreign judgment at Calcutta. The plt. had judg- Dougl. 4, ment, but as a judgment does not put him in possession of the Crawford v. Wittal, in thing, he is not obliged to sue in his own right. § 6. 2d. The plt. may sue in his own name in all cases 1 Vent. 119. where the goods appear to be his own. notes. Marsh v. Yel 7. If the testator, an attorney, begin business for A, and Stra. 1107, die, and his executor finish the business, and the deft. A pro- lowly. mises to pay the executor, he may sue in his own right. This in fact never is a debt to the testator, though a part of the business was done by him, but being finished by the man who is executor, and the promise being made to him, it is properly his debt. 8. In this case the court held, that a count for money had 3 T. R. 659, Petrie, & al. and received to the use of the plts., as executors, by the deft., exrs. v. Hanmight be joined with a count for monies had and received by nay. him to the use of the testator; both counts are to recover to the use of the estate. money, 5 T. R. 234, 235, Goldthwaite & ux. v. Petrie & al. 9. After the testator's death, the deft. received his his executor may sue in his own right. By the testator's death, the money might come into the executor's hands, and so exrs. of Wood become assets; and if assets, it was his to be sued for. $10. If the cause of action never did arise to the testator, See Carth. 322, Chapthe executor may sue in his own name and right, or as execu- man v. Dartor. So if A and B be partners, and A dies, and I receive bytheir money, B may sue me in his own right; 14 Mass. R. 2T. R. 476. 327. -Willes 103. 559.-Com. on Contracts, 526. 11. In this case the testator's tenants owed him several Willes 103, 107, Shipman sums of money for rent; after his death the deft., his steward, v. Thompson. received the money, and so was never indebted to the testator - Com. D. himself. The court, on argument, held that the testator's executrix might sue for this money in her own right; 2 Salk. 421. § 12. If there be two partners in trade, and one dies, and 2 T. R. 476, then a third person receive partnership money, the surviving partner may sue in his own right, and need not as surviving 14 Mass. R. partner; for the third person is never indebted to the part- 327, Mowry nership, as he received the money after the death of one of the partners. If the surety's administrator pays, he may sue in his own right. Smith v. Bar row. v. Adams. 13. So if the executor recover a foreign judgment, he Dougl. 4. may sue this judgment in his own right. Bonafour v. So if an executor recover judgment against A, and he be 2 T. R. 126, taken in execution and escape, the executor, in his own name, Walker. may sue the sheriff for this escape, yet the damages when re- 5 Com. D. covered are assets. By the judgment, the executor reduces 559. 206 Art. 19. 4 T. R. 561, Munt & al. exrs. v. Stokes. Mass. S. J. C. the thing into his own actual possesion, and becomes accountable therefor as assets, at least if he chuse so to consider the case, and then he has his election to sue for the escape in his own right. § 14. So if executors pay monies, they are not bound to pay, as on a respondentia bond void by statute; they may recover it back in their own name, if at all. the executors should have sued in their own right; they paid Buller J. thought a debt their testator was bound in conscience to pay, though not in law. § 15. In this case the plt., administrator, discharged the old Essex, Nov. bond due to the estate of the intestate, whereby it became im1793, Long, mediate assets, and took a new bond to himself; this becomes adm. v. Long. -2 Bac. Abr. his own and to be sued only in his own right. He sued on the discharged bond and failed. The debt was changed, because 221-5 Com. the new bond was in a different right; the debt due to the D. 576, 644, intestate was extinguished, and a new debt created to the ad645, Geyer v. ministrator himself: and if in the new bond the obligee call 386.-Salk. 23.--1 Mod. Smith. 1 T. R. 487, King v. Thom. Cro. El. 145, 179, Hadman v. Kingwood. -2 Esp. 90. 3 East. 104, Ord v. Fen wick. himself administrator, it is but as surplusage. 1 Dallas, 347. § 16. Buller J. held, that if the executors endorse the testater's note, they become personally liable, and cannot be sued as executors, but must be sued in their own right, for their endorsement cannot, by any operation of law, give an action, judgment, and execution against the effects or estate of the testator. 17. The good of the church belong to the church-wardens, and they may have trespass for taking them. They must commence their action whilst in office, but may pursue it after their office is expired. § 18. If the testator pay monies to the deft's. use, and the executor, as executor of the surety, pay money to the princi2 Selw. 102. pal's use, these matters may be joined in the same action. And if the surety's executor be compelled to pay the principal's debt, the law raises an implied promise to him to reimburse the testator's estate, and the money so recovered by the executor will be assets. reimburse the estate, the representative of it may, And when there is a promise to sentative capacity, recover to its use. in his repre Mass. S. J. Court, Nov. 1787, Ellenwood, adm. v. Fluent.Willes 105. Willes 103, Shipman v. Thompson. A was indebted to E. Ellenwood, he died, and B. Ellenwood became his administrator; after E. Ellenwood died, the deft., Fluent, received A's debt. Held, the administrator of E. E. might sue as administrator, or in his own name, for he might elect to make it his own debt, or the debt of the intesDeft. never had it by the plt's. consent, nor was he ever debtor to the intestate. tate. droit, or in his own right." In Willes there are sundry cases CH. 9. Art. 19. stated, from which he extracts a general rule, and lays down the distinction to be, that if the "thing sued for be assets in the executor's hands, before the recovery, or where the cause of action arises, in his own time, and never did arise to the tes--5 Com. D. tator, the executor may sue in his own name, or as executor." 559.-Salk. 207,314.$20. If the deft., receive a debt due to the testator, after Same case, his death, by the executor's assent, it is assets immediately, for 6 Mod. 92. then the executor gives it up to the receiver; and if without the executor's assent, yet his bringing the action in his own right, is such an assent, as on judgment, it shall be assets, and immediately, and before execution; for by suing in his own right he admits and affirms what he sues for is his own; and a further reason is, because it is recovered against a person who never was indebted to the testator, and the original debt was discharged. As King & al. exrs. v. Thom. 21. So if a debt never due to the testator be endorsed to 1 T. R.487, his executors as executors, they may sue as executors. where, December, 1781, Brand drew a bill of exchange on the deft. to pay £100 to A, this bill the deft. accepted; A endorsed the bill to the plts. as surviving executors of Stevenson, the deft. was sued as acceptor. It was objected that they could not sue as executors, but only in their own right, for the promise by law could not be made to them as executors, but only to them in their own right. The court held, that this action may be supported, and said, "it must be taken for granted the endorser was indebted to the testator, and to the plts. as executors; so he might endorse to the plts. as executors, and then they held the bill as executors, and on the acceptor's refusing to pay, they may declare upon the right in which they hold it. So in Goldthwaite's case above, they sued as executors, and it was holden, they might sue either way. Ev. 118. § 22. Day, the deft., compromised the plt's. demand against 3 Mass. R. her debtor, Pillsbury, and took his own note. Held, that 403, Floyd v. Day.Day became immediately indebted to her, the plt., to the See 2 Phil. amount of the sum compromised for, as for so much money 1 Chitty on had and received by him to her use, and that the note Day Plead. 48, took was his, and she could not support trover for it against 151. him. 9 Mass. R. 104. er v. Dins § 23. If a guardian to an insane person give a negotiable 5 Mass. R. note as guardian, yet he is liable, and can be sued but in his in- 299, Thatchdividual capacity after his guardianship is discharged; and this more. negotiable note discharges the ward's debt to the plt., though given by the ward's guardian only. § 24. In a case like Goldthwaite's and Fluent's, it is said the Salk. 314, plt. must sue as administrator, and that the debt is not assets Eaves v, Motill recovered. This case only proves, that when the execu cato. Сн. 9. Art. 19. 1 T. R. 691, tor sued as executor, for a debt the deft. received of the testator's after his death; the plt. was not subjected to costs, because the court held, he was not obliged to sue in his own right. 25. If an administrator, as such, submit to arbitration, 692, Barry . and bind himself, his heirs, executors, and administrators, he is bound in his own right, and must pay the sum awarded against him, whether he has assets or not; for he cannot bind the estate of the intestate so as to give a judgment or execution against it. Then, as he cannot bind this estate, he must be personally bound, if bound at all. Rush. 3 Wils. 1, 5, Stone. 2 Bos. & P. 26. On a view of the above cases, the distinctions appear to be, 1st. If the debt never was due to the testator from the deft. or any other, nor on the facts can be presumed to have been due to him, his representatives cannot sue as executors; and if they do sue as such, it is but surplusage, and the word executors may be stricken out. 2d. If the debt, the subject of the suit, ever was due to him, and was a credit of his creating, though not from the deft. but another, and received by the deft. without the executor's assent, they may sue as executors, or in their own right. In the first way, for the testator gave the credit, and his executors have done nothing to change it. In the second way, for the deft. himself never was indebted to the testator, but he has been indebted to the executors only. This debt to them they may well consider as a debt to the estate, and sue as executors, or if they chuse, their own debt, and sue in their own names, and charge themselves, if they chuse it, with assets to the amount of the debt received by the deft. 3d. If the action must be grounded on the deed or promise made to the testator, then they must sue as executors; but otherwise, if they can ground their action on their own possession or any new promise to themselves. These principles apply, with very little variation to the cases of guardians, agents, factors, &c., for when the right never was in, or promise to the principal, the action cannot be in his name; but when in, or to him alone, it must be in his name, and when there is a ground of action in him, or in the one who represents him, the suit may be in the name of either. § 27. Sundry cases. If an administrator hold a negotiable note in auter droit Rawlinson v. given to his intestate, he may endorse it and enable his endorsee to sue it. In this case the administrator merely passes the property, but his endorsement is his own, and he cannot thereby subject his intestate's estate to judgment and execution. Like principle-action lies not against one as administrator on his own promise, though administrator. 73. 28. In this case it was held that a promise to the testator, and a note of hand to the plt., as executor, could not be joined, for the note is a new security to the plt. himself. CH. 9. Art. 19. ex'r.v. Mitch $29. A count to the plt. as executor on a contract to the 3 East 106, is testator, and a count in his own right cannot be joined, as cited, Betts, where the plt. sued as administrator of A, on indebitatus as- ell. sumpsit, and on insimul computassit between the plt. and deft., 2 Saund. 117 for monies due to the plt. himself, for these are in different d. cites, rights, and in the last count the plt. cannot sue in auter droit, Herrenden v. for a debt due to himself. Hob. 88, Palmer.1 Salk 10, $30. But otherwise if the insimul computasset be made by Rogers v. the executor for monies due to the testator. See Insimul Com- Cooke. putasset, ch. 38; and Petrie & al. ex'rs. v. Hannay, ante; and Cocheral & ux., ex'rs. v. Kynaston, above; also the next case. $31. This case was trover. version in the testator's time, and the third count for a trover ux., ex'rx. v. and conversion in the time of the executrix. And resolved Kynaston. they were well joined, and the last well sued in auter droit; for it seems the goods even in this third count had never been actually recovered by the executrix, and so, till so recovered, were deemed to be a part of the testator's estate, and not assets. The first count was for a con- Cocheral & cato. 32. But Eaves v. Mocato seems to be otherwise; in which Salk. 314, it is said, if the trover and conversion be in the time of the ex- Eaves v. Moecutor, he must sue in his own right. But these cases are reconcileable, for in Eaves v. Mocato the executor's actual possession is understood; and in Cocheral & ux., ex'rs. v. Kynaston, the court understood the executrix had had only a constructive possession; and in both cases the goods are not deemed assets till actually possessed by the executor, and till then he must sue in auter droit, and after that he must sue in his own right, for then the goods become absolutely his, and assets. He must in all events account for them to the estate, though he lose this possession, and bring trover, and fail to recover. So as to a debt due to the testator, and received by the executor, or by a third person by the executor's order or assent, as in Jenkins & ux. v. Plume, above. And so if the third person receive it, and the executor sue in his own right, it is assets in his hands; for by suing for it in his own right, he considers it his own debt, and the debt to the testator as discharged, as much as if he took a note or bond for it to himself; especially after judgment, when it becomes res adjudicata to him in his own right; and see Long, admr. v. Long, above. But he may elect to make it thus his own, or sue as executor, and still consider it as a part of the testator's estate, and not assets till recovered, as in Ellenwood, admr. v. Fluent. $33. As to rent. The declaration in 3 Wentworth 7, and in |