Where an infant and an adult join in a contract, voidable as respects the infant, the adult may be sued alone. 3 Taunt. 307.

An infant is not liable on his bond with a penalty. Cro. Eliz. 928. But his surety will be bound.

But an infant is liable on his single bill, or on his promissory note, if given for necessaries, of which the court will judge. 1 T. Rep. 41. See Salk. 386.

But, it seems, an infant cannot accept a bill of exchange for necessaries. 1 Camp. 552.

If infancy is not a defence to a contract in the country where the contract was made, it will be none here. 3 Esp. R. 163. And the onus probandi lies on the infant, to show such contract is void there.

Ibid.

In an action against an infant, it is not necessary to mention his infancy, and that the articles were necessary. But if the defendant pleads his infancy, the plaintiff may reply, that the articles furnished were necessaries; Jon. 146; Str. 1101. Or that the defendant confirmed the promise after full age. 1 Term R. 648.

But a ratification by a person after coming of age, if made under the terror of an arrest, or through ignorance of the law, is not binding. 5 Esp. R. 102.

If an infant, when sued, does not name a guardian to appear by, the court will permit the plaintiff to do it. Str. 1076; 7 Taunt.

488; 2 Wils. 50.

CHAPTER VII.

OF ACTIONS BY AND AGAINST IDIOTS, LUNATICS, &C.

AN idiot, i. e. a fool or madman from his birth, or who has no lucid intervals, it is said, must always appear in person, whether he prosecutes or defends. Co. Litt. 135, b.

But a person non compos, i. e. who has lost his understanding, may appear by attorney, if of full age, otherwise, by guardian. 4 Co. 124, b; 2 Saund. 235. But how can a person non compos mentis appoint an attorney? See, in Maine, Stat. 1845, c. 166. An idiot or lunatic must sue in his own name, and any one who prays to be admitted as his friend, may sue for him. See 2 Saund.

It has been held in England, if an insane person buys goods on credit, suitable to his rank and condition, of a person who has no notice of his insanity, the seller may recover in an action of Assumpsit. See Bagster v. Portsmouth, 7 Dowl. & Ry. 614.

But it seems, no action for damages for the non-performance of an executory contract could be maintained against an insane person. In case of a contract with an insane person, without notice of his insanity, where the other party had performed his part of the contract, his proper remedy perhaps might be a quantum meruit for his services.

Qu.

Where a person deals with one insane, the burden of proof of want of notice of the insanity, would seem to fall on the dealer.

CHAPTER VIII.

OF ACTIONS BY AND AGAINST EXECUTORS AND ADMINISTRATORS.

In general, an executor or administrator, may maintain an action for a breach of any contract, made with the testator. Except, perhaps, a breach of contract of marriage. See 2 Maule & S. 408.

So he may maintain covenant, for any covenant made to the testator for a personal thing, or upon any covenant concerning the realty, broken, in the testator's lifetime. Com. Dig. Administration, (B. 13); 1 Maule & S. 355.

But an executor cannot sue for the breach of a covenant of seizin in fee, made to his testator; nor, for a breach of a covenant for further assurance, since the death, unless the personal estate has been directly impaired by it. 1 Maule & S. 355.

And generally it would seem that an executor cannot maintain an action on any covenants real, which run with the land for breaches happening since the death of the testator. Such actions should be brought by the heir.

An executor, &c. may maintain trespass, trover, &c. for goods belonging to the estate, taken out of his own possession, either as executor, or without naming himself executor. In the former case,

he may join any count, in the same form of action, which he may have a right to bring as executor; in the latter case, he may join any suitable count, in his own right. But, in either case, it is obvious he will have to account, as executor, for whatever property he may recover in right of the estate of the deceased.

In like manner, an executor may maintain debt, for goods of the testator, sold by himself.

It is held, an executor may maintain an action on the case, against the sheriff for an escape of one taken in execution, or for not returning his writ, or for a false return, See Com. Dig. Administration, B. 13, and the various authorities there cited pro & con. See also Ld. Raym. 973; Cro. Car. 297; 1 Salk. 12; Ld. Raym. 41. But it is said, otherwise of an escape on mesne process. lbid.

As torts generally die with the person, an executor cannot maintain trespass for an assault and battery on the testator, or an action of the case for slandering the testator, &c.

But an administrator or executor, may maintain debt upon a judgment recovered by the intestate or testator, or upon any recog. nizance, obligation or other specialty or contract made to him.

So, he may maintain replevin for goods taken in the deceased's lifetime. See 6 Mass. Rep. 394; Cro. Eliz. 377; 1 Vent. 187.

Where an executor or administrator, names himself so without necessity, having a good cause of action in his own name, though in the right of the estate, his naming himself, executor, &c. is mere surplusage.

Where an executor sues as executor, he cannot join in the same action a count in his own right. Str. 1271; 1 Wils. 171.

Neither can a count against one in his own right be joined with a count against him as executor or administrator.

But, it seems a count upon a promise to the plaintiff as administratrix, for goods sold by her after the death of the intestate, may be joined with a count upon an account stated with her, as admininistratrix.

In determining whether counts can be joined or not, the best rule seems to be, that, if the sums recovered will be assets in the plaintiff's hands, the counts may be joined; otherwise, not. Bull v. Palmer, 2 Lev. 165. See also Cowell v. Watts, 6 East, 405. A difficulty, however, may sometimes arise in such cases, with regard to the costs, if the executor should fail in his action.

It has been held, that an action on a bond given to the testator, cannot be joined in an action on another bond given to his executor, as such. Hosier v. Ld. Arundel, 3 Bos. & Pul. 7. In such case, if the exccutor were allowed to proceed in the joint action, but should die before judgment, to whom could this joint action

survive? The first bond ought to be sued by the administrator de bonis non of the testator; the second by the administrator of the

executor.

A misjoinder is sufficient cause to arrest judgment.

An executor or administrator cannot join with a surviving promisee; for the surviving promisee alone can maintain the action; neither can an action be brought against an executor or administrator and a surviving promisee jointly. 2 Lev. 228, 298; Fortesc. R. 181.

If money belonging to a testator be received by another person after testator's death, the executor may recover it in his own right, and consequently may join any other claim of his own with it. 2 Term R. 476.

If an executor pays money, which he is entitled to recover back, he should sue in his own right, and must not join with it any claim, as executor; though if he only styles himself executor, it will merely be surplusage. 4 T. R. 561.

An administrator cannot commence an action until administration granted. 1 Salk. 303. That is to say, if A, expecting to be administrator on B's estate, should commence an action as administrator, and afterwards should actually be appointed administrator, it will not avail him in that action. In England an executor may bring an action before probate of the will, but cannot declare till probate granted. It would seem otherwise in Massachusetts, where those executors alone who accept the trust by giving bonds, have any right to commence suits.

By the English law, all the executors and administrators must join in suits. Yelv. 130. But in Massachusetts, those only who accept the trust by giving bonds, need be named either as plaintiffs or defendants. And in England, it does not seem necessary to join, as defendants, those executors who do not administer. See Str. R. 783; 1 Lev. 161; 2 Saund. 213.

If there are two executors, and one dies, the survivor alone must sue and be sued. Imp. Pl. 90, 91.

So, if there are two administrators appointed, and one dies, the office survives to the other, who may be sued and may sue alone. 2 Vern. 514.

In sueing administrators, all must be joined, because, of course, all are concerned in the administration.

At common law, no action can be maintained against an execu

tor or administrator, as such, where the general issue is not guilty; as, for assault and battery by the testator, slander, trespass, nuisance, actions on the case, (other than for promises,) trover, or where law wager is allowed. Cro. Eliz. 600; Pl. 330. But, in many cases, by waiving the tort, a sufficient remedy may be had against an executor or administrator, on an implied assumpsit. See Tol. on Executors, 462; Cowp. 376.

By the Rev. Stat. of Mass, ch. 93, § 7 and 9, the actions of replevin, trover, trespass for assault, battery, or imprisonment, trespass for goods taken and carried away, and trespass on the case for damage done to real and personal estate, survive, and such actions may be commenced originally by and against an executor or administrator; or, if commenced by or against the original party, may be prosecuted or defended by or against his executor or administrator. But in such case, the actual damage sustained can be recovered, and not vindictive damages.

An executor or administrator cannot be charged, as such, either for money had and received, money lent to him, or on an account stated of money due from him as executor or administrator; these charges make him personally liable. See 1 H. Bl. 108.

But an insimul computassent of money due from the intestate, does not make the administrator personally liable. 1 Hen. Bl. 102. The executor or administrator of a tenant, may be sued as such for breaches of covenant committed by an assignee, to whom the premises have been assigned since the death of the tenant. 10 East, 313.

If there are joint lessees, and one dies, covenant lies against the survivor only. If both lessees die, covenant lies against the administrator of the survivor alone. But, if the lease is joint and several, and one of the lessees dies, covenant, at the option of the lessor, may be maintained against the administrator of the deceased lessee, although all the interest in the lease survives to the other surviving lessee. See Enys v. Donnithorne, 2 Bur. 1190.

Any person, who takes upon himself to manage or intermeddle with the goods of a person deceased, may be sued as executor de son tort; styling him, however, as executor, as in other cases. 5 Co. 33, b; Salk. 313; Mod. 471.

But mere acts of kindness will not make one an executor in his own wrong; as, taking care of the funeral of the deceased; providing for the children of the deceased; or feeding his cattle; or