making an inventory; or any acts for the necessary preservation of the property of the deceased before administration is granted.

By ch. 64, 11, Rev. Stat. of Mass., persons selling or embez zling the property of a deceased person before taking out adminis tration, &c., are made liable as executors de son tort.

By the same ch., when from any cause there is a delay in granting administration, the Judge of Probate has power at discretion to appoint a special administrator to collect and preserve the property of the deceased; such administrator is not liable to an action by the creditors of the deceased.

An executor or administrator, in an action in the right of the deceased, must be styled accordingly; otherwise, it may be pleaded in abatement. Com. Dig. Pleader, (2 D. 1.)

CHAPTER IX.

OF ACTIONS BY AND AGAINST HEIRS.

For a breach of a covenant real, after the ancestor's death, the heir must sue. But for a breach of covenant real, in the lifetime of the ancestor, the executor or administrator alone may sue, though the covenant was with the ancestor, his heirs and assigns only. Vent. 175; 2 Keble, 831.

Accordingly, if a man leases for years, and the lessee covenants with the lessor, his executors and administrators, to repair and leave in good repair at the end of the term; and the lessor dies, his heirs may have an action on this covenant though not named. 2 Lev. 92.

If a feoffment be made in fee, and the feoffor covenants to warrant the land, or, otherwise, to the feoffee and his heirs, of this cov enant, the heir of the feofee shall have the advantage.

If A covenants with B and his heirs to enfeoff B and his heirs, and B dies before it be done, B's heirs shall take advantage of the covenant. And. 55.

A covenanted with B that he was seized of a good estate in fee, B's heir must sue for a breach and not B's executor. See Wood's Conv. 552. See further Imp. Pl. 124.

An heir who sues in his own right, though he comes to this right by descent, need not name himself heir, but, if he sues upon a

covenant or grant of his ancestor, he should be named as heir. Com. Dig. Pleader, (231.) And he should show how he is heir.

1 Salk. 355.

At common law, heirs are never bound by covenants, unless expressly named.

An action of covenant may be maintained against an heir on a covenant, by which the ancestor binds himself and his heirs, and it is not necessary to allege the descent of lands; for, if it be not so, the heir must plead it. Willes' R. 585; Dyer, 344, B.

And it seems that it is not necessary, for the plaintiff to show how the defendant is heir; for it may not be in his knowledge. 1 Salk. 355.

An heir is not liable for the debt of his ancestor beyond the value of the lands which descend from him; otherwise he might be charged ad infinitum. Str. 665. An heir and a devisee are liable jointly, but quære, how contribution shall be made between. See 2 Str. 1270. As respects the plaintiff, no doubt, each is liable for the whole as far as the value of the estate inherited or devised will go; but on an action for money laid out and expended, or a bill in equity, will the amount for which each is eventually liable depend upon the proportion of their respective shares of the deceased's estate? However that may be, it seems the executor is bound to reimburse them, as far as the funds will go. 2 P. Will. 175.

Under the Revised Statutes of Massachusetts, ch. 70, § 13; "after the settlement of any estate by an executor or administrator, and after the expiration of the time, limited for the commencement of actions against him by the creditors of the deceased, the heirs, next of kin, devisees and legatees of the deceased, shall be liable in the manner provided in the following sections, for all debts, which could not have been sued for, against the executor or administrator, and for which provision shall not have been made according to the sixty-fifth chapter, (which among other things makes provision for the payment of the debts of the deceased, in general, in the ordinary course of administration.)

By 14, each of such persons is liable to such creditor, to an amount not exceeding the value, whether of real or personal estate, that he shall have received from the deceased; "Provided, that if by the will of the deceased, any part of his estate, or any one or more of the legatees, shall be made exclusively liable for the debt,

in exoneration of the rest of the residue of the estate, or of the other devisees or legatees, the provisions of the will shall be complied with in that respect; and the persons and estate, so exempted by the will, shall be liable for only so much of the debt, if any, as cannot be recovered from those who are first chargeable therewith; and provided further, that no such suit shall be maintained, unless it be commenced within one year, next after the time when the right of action shall first accrue."

By 15, if any of the heirs, &c. shall die without having paid his just proportion of such debt, his executors and administrators shall be liable therefor, as for his proper debt, to the extent to which he would have been liable, if living.

By 16, if more than one are liable, the creditor may recover in a bill in equity, against them, &c.; and the court shall thereupon determine, by the verdict of a jury, if either party require it, what sum, if any, is due to the plaintiff; and they shall also decide, according to the course of proceedings in chancery, how much each one of the defendants is liable to pay towards the satisfaction of the debt, and may award execution and other process therefor.

By 17, in case of the insolvency of one of the heirs, &c. &c. the others shall nevertheless be liable to the creditor, for the whole amount of his debt; provided no one shall be compelled to pay more than the amount received by him from the estate of the deceased.

By 19, any such insolvent, &c. shall be liable to indemnify such others as have consequently paid more than their just proportion of the debt; for which they may sue jointly, or one or more may sever from the rest, at their discretion, &c.

See the case of Hall v. Bumstead, 20 Pick. 2, where a construction is given to some analogous provisions in the act of 1788, ch. 66, 5, and the proper mode of declaring is pointed out.

[See Rev. Stat. Maine, ch. 120, § 24—28.]

CHAPTER X.

OF ACTIONS BY AND AGAINST JOINT TENANTS, PARTENERS, AND TENANTS IN COMMON.

In all real and mixed actions, joint-tenants ought generally to join, having but one joint title, and one freehold. Co. Litt. 189, a. So they ought to join in trespass and other personal actions, where they are jointly interested. And if two joint-tenants demise their land, reserving the rent to each separately, still they should join in a suit. 5 Mod. 72.

So, joint-tenants should be sued together in real actions concerning the joint estate, as in a præcipe quod reddat, writ of entry, formedon, dower, and in a writ of partition brought by one jointtenant; and if a man and his wife are joint-tenants, they should both be sued.

Tenants in common shall not join in any real action, as they hold by distinct titles. See Litt. § 311; 2 Cro. 231.

But tenants in common must join in personal actions, for a matter concerning their tenancy in common; as, trespass, or case for a nuisance, or debt for rent reserved to them in a joint lease, &c. 1 Sid. 49; 1 Salk. 4; 2 Cro. 231.

So, in a personal action concerning the lands held in common, all the tenants in common must be sued as in trespass quare clausum fregit. See Co. Litt. § 323.

Parceners should join in all actions real ancestral, where the right descends to them from the same ancestor. Com. Dig. Parcener, (A 5); Co. Litt. 164.

So, if two parceners are disseized, they ought to join. Ibid.

But, if two parceners are disseized and die, their heirs ought to sue severally, for each has a several right; though when they have recovered, they are parceners. Co. Litt. 164, a; Com. Dig. Parcener, (A 5.)

Parceners before partition must be joined, but not after partition. Com. Dig. Abatement, (F 4.)

By the Rev. Stat. of Mass., ch. 101, § 15, "Persons claiming the same premises, as joint-tenants, tenants in common, or co-parceners, may all join, or any two or more of them may join in a suit for the recovery thereof, or any one may sue alone for his particular share."

[See Rev. Stat. Maine, ch. 129, § 17—20, ch. 145, § 12.]

CHAPTER XI.

OF ACTIONS BY AND AGAINST BARON AND FEME.

1. When the husband MUST sue alone.

Where the wife cannot have an action for the same cause, if she survive, the action shall be by the husband alone. Com. Dig. Baron & Feme, (W ;) 1 Salk. 114; 1 Sid. 25; 1 Lev. 140.

As in an action of trespass for the battery of the wife, per quod consortium amisit. 2 Cro. 501, 502; Jones, 440.

So in an action of trespass for carrying away after coverture things severed from the freehold of the wife, the husband must sue alone, as they become absolutely his property by the marriage.

Where a husband sustains a special damage by the slander of his wife, he must sue alone. 1 Sid. 346; 1 Lev. 140. But for a slander to the wife, actionable per se, i. e. without special damage, they must join. The reason seems to be, because, if in the first the husband dies without bringing an action, the wife surviving can have no action for the special damage. But, in the latter case, if the husband dies without bringing action, the wife may bring an action.

Where an assault and battery are committed on both husband and wife, he cannot sue for both in one action. For the assault and battery on himself, he must sue alone; for the assault and battery on his wife, he must join her. 2 Ld. Raym. 108.

For a similar reason, trespass for the goods of the wife, taken before coverture, cannot be joined with trespass for taking the husband's goods after coverture. In the former case, the husband and wife must join; in the latter, the husband must sue alone.

2. Where the husband may sue alone, or join his wife, at discretion.

In actions for a profit accrued, during the coverture, to the husband in right of his wife, he may either join his wife or sue alone. Com. Dig. Baron & Feme, (X.)

So, also, for a breach of covenant, in relation to the wife's land after coverture, the action may be by the husband alone, or he may join his wife. 2 Cro. 399.

If the cause of action be only commenced before coverture, and completed afterwards, the husband may sue alone, or husband and wife may join; as in trover, where the goods were lost before mar