coke b PINCHONS case mic James in b r a action on the case upon assumpsit for  the payment of a debt lie against executor No action of debt lie against  executor where if the action have be bring against the testator he may have  wage his law in assumpsit against executor for the payment of a debt it be not  necessary to aver that they have asset for the payment of legacy nor be it  necessary to aver that they have asset for payment of debt a I have mark this  resolution as not be a resolution in Pinchons case although the report of  croak and Brownlow be otherwise coke himself report it as the resolution in  Codington v hulet it be quite clear that the case do not call for the decision  of the point as the declaration contra to what be say in croak contain a  averment that the defendant have asset to pay the testator debt Vid the entry  a SC Brownl cro James jenk cent with the entry   Ent nu see Finlay v Chirvey  QBD Phillips v Homfray Ch d App Cas boundary Trin James king rot in the king  bench Edward Pinchon and Richard Weston knight executor of Jerom Weston knight  executor of rise Pinchon be plaintiff against Thomas legate Esq executor of  John legate defendant in a action upon the case and declare that whereas the  say rise Feb year dom mutually to hand over et accommodasset prf John legate  of coin England idem Johannes in consideration ind adtunc et ibidem super see  assumpsit et prf Ros in vita svan with reliance on God to let go quod ipse  idem Johannes legate of coin England eiden Ros execuloribus well director nest  cum ind require be bene et with reliance on God to loosen et contentare vellet  c ac although good et catalla queen to be prd John legate tempore death sum ad  manus prd Thomce post Self John death c to come etadhuc in shades of dead  ipsins Thomce to step out sufficientiam tam ad solvendo et coke report a er p  exonerand in all respects debt is owed et funeralia expense the same John how  ad satisfaciend prdiel BdwardoetRichardo de prd two hundred scales non solber  c the defendant plead non assumpsit c and it be find for the plaintiff and  upon the verdict judgement give for the plaintiff upon which judgement a writ  of error be bring and in this case the principal error which be assign be that  no action upon the case upon assumpsit for payment of the say debt lie against  executor and it be argue for the plaintiff in the writ of error that the  action do not lie for it be a maxim in law that executor shall not be charge  with a simple contract and that coke a for two reason one because by the  presumption of law they can have knowledge either of the beginning of the debt  be make by word without write or of the continuance of it because the testator  may pay it private betwixt themselves and therefore it be adjudge in a Br ex  Br lie gager roll a e a that a action of debt lie not against executor for the  testator diet although it be of necessity and for which a b roll roll Rep    light a Cr Elizabeth Leon Leon Owen Poph Cr James latch cart Noy side march  palm Jones more godb h a Perk a blow b dr Stud a b infant shall be bind by his  contract as it be hold in e a h b vide e e so no action of debt lie against  the executor of the lord for the surplusage c   light a c on account before  auditor for the reason and cause aforesaid and these be strong case than the  case at the bar and if a action on the case will lie against executor it will  impugn the say maxim of the commonlaw for every contract executory imply a d    a more Yelv d assumpsit in law and by consequence the executor shall be charge  with every contract executory which will be direct against the say maxim  another reason be add that this action on the case on assumpsit be e Bulst  Inst keb postea a e action personalia queen noritur cum mask for the entry in  this case be in plea transgression super grammatical case and therefore lie  not against executor no more than if a gaoler staffers one who be in execution  to escape the plaintiff may have a action on the case at the commonlaw against  the gaoler but after the death of the gaoler no action lie against his f die f  n b keb sand f executor b Acc anon Mod Langton v Wallis Lord raym SC Lutw  Whilacres v Onsley dyer and Vid Berwick v Andrews Lord raym but where a  sheriff have levy money under a be made fa and die before pay it over his  executor be Chargeable Perkinson v Gilford cro car sc w Jones Parkinson v  Colliford march roll ab Com dig admonish b Ail action of debt lie also against  the executor of a sheriff on a judgement recover against the testator for a  escape dyer Com dig where sup b for that be ground upon a wrong which noritur  cum mask vide ass p e executor and this case depend in consideration diverse  term and after many argument on both side and conference have among the judge  videlicet coke chief justice of the common plea Tanfield chief baron Warburton  justice baron snigge baron Altham foster justice and baron Bromley it be  resolve by they all and One voice nullo to speak against that the g Cr James  jenk cent Bulst Bulst Cr Elizabeth gold post   a b roll Brownl godb Swinb roll  Rep Goldsb more Leon Yelv g action on the case in the case bar do well lie  against the executor and that not only without impugn any rule or reason of  law or any book resolve in the point but also well warrant and confirm by  diverse authority in law judgement and resolution late and ancient and as to  the objection which have be make for the confute of they be a confirmation  that the action do well lie to the first it be answer that the say coke report  b er p book in h e a above a h e be that debt lie not against executor upon a  contract for the testator diet but the reason thereof be not as have be urge  because the executor can have knowledge of the contract nor coke b of the  continuance thereof because the testator may have private pay it but the  reason of the law which be give in the book in the same case be because the  testator may have a die a pl a wage his law it be award that the plaintiff  shall take nothing by his writ and the like judgement be in the same year fol  a that a action of debt lie not against the executor and the reason of the  judgement be for know that a man shall never have a action against executor b  die pl roll b where the testator in his lifetime may have wage his law and the  reason thereof be because the c   light a c executor shall be deprive of the  benefit of wage law if a action will lie against they c so also debt do not  lie against a administrator upon a simple contract of his intestate bowyer v  garland cro Elizabeth Barry v Robinson n r but the objection can be take on  demurrer only prince v Nicholson taunt SC marsh and the case there cite c  which reason strong prove that in the case at bar the action will lie against  the executor because the testator in a action on the case on this assumpsit  can not wage his law and therefore his executor shall not be deprive of it but  if a d   light a Poph d prisoner in the tower for treason have meat and drink  from the lieutenant and die the lieutenant shall have a action of debt against  his executor for the meat and drink of the testator and the reason be because  in such case the testator can not e   light a roll Rep Poph h b Br lie gager  Fitzherbert lie   light a e wage his law as it be adjudge f h b Br lie gager  Fitzherbert lie f h b in Thomas Bodulgats case and the reason why no wager of  law lie in such case be because every gaoler ought to keep his prisoner in  salvaetarcta custodian so that such prisoner by the commonlaw shall avoid a g    light a g descent cast and a fine levy during his imprisonment because the  law presume that he in respect of his strict keep can have h   b h knowledge  of a seize or a fine to command a entry or claim to be make and therefore the  gaoler be in a manner compellable to find victual for his prisoner and  therefore the prisoner shall not wage his law in such case d in mood v mayor  of London salk sc f Mod holt holt CJ say the reason be not because the gaoler  be oblige to find he victual but because the defendant be in durance and the  plaintiff can take security from he for repayment for a bind will be void so  that he must be content with a promise Vid dive v maningham Plowd a king v n b  Yorkshire barn Cress SC dow Ryl d but if a agree with b for his I Cr Elizabeth  roll   light a Br lie gager Fitzherbert lie I commons by the week or month c  there in debt bring against a he shall have his law as the book be adjudge in  h b e b vide h b if a victualer or common ostler bring a action of debt for  the victual deliver to his guest the guest may wage his law for a victualer or  ostler be not compellable to deliver victual till he be pay for they in h a  hand and therewith agree h a in h b r g bring a action of debt of ten mark  against Thomas Timberbull and other executor of William web and declare that  the testator have retain the plaintiff to be with he for a year in the art of  king roll king limning of book pay per annum ten mark and there Martin hold  that the action be coke report a er p coke a not maintainable against the  executor and take a difference between that case of a booklimner and of a  common labourer for he shall be force to labour against his will e and his  salary be certain by the statute which be no reason for the servant to lose by  the death of his master where he be bind by the law to serve which shall not  be say his default but the act of the law but in the case of a booklimner he  be not a force by the law to serve and so when he make the contract it be his  own act and folly and not the act of the law and he may have take a specialty  and the opinion of Martin in that case be good law but the true reason of his  difference be because in this case of a common labourer the testator can not  have wage his law as he may have do in the case of the booklimner and that  appear in b h a b where the warden of the freres minor of Coventry bring a  action of debt against I Burton of Coventry executor of John good and declare  how the say John good retain at Coventry frere John Bredon confrere of the say  warden in the say house by licence of the warden to sing for he mass for a  whole year and also do retain he to say saint Gregory trental in the next year  after and show in certain on what service saint Gregory trental do consist  take for the same S per annum and within four day after John good die and make  the defendant his executor and the say John Burton grant to the say frere and  give surety to pay he the say sum for do the say divine service accord to the  retainer of the testator which divine service he have do accord to the say  retainer and that the whole salary be behind and there a good difference be  take a labourer may have a action of debt against executor without a specialty  because he shall be force to serve if he be require by the statute and the  testator shall not wage his law in such case because the labourer shall be  bind to serve he but here a priest or a frere be bind to serve by no law in  sing mass if he will not agree to it and therefore the testator may have wage  he law and in every case where the testator may have c wage his law the action  shall not be maintainable against his executor without a specialty for the  executor can wage their law of another contract and that be the reason that a  d quo minus lie in the exchequer against executor for the debt of the testator  by simple contract because the testator himself can not in such case wage his  law and yet it may be say that the executor can by presumption of law have  knowledge coke b of the beginning or continuance of it but these be not  material for the wager of law be the true reason and cause allow by the law  and therewith agree h title e lie h a in a h b Laurence saint Martin retain  one for term of his life in time of peace and war for S per and which service  he as his servant do for two year for which he bring his action of debt  against John Belton and other executor of the say Laurence saint Martin and  judgement be give against the plaintiff for the reason and upon the same  difference as be aforesaid vide b h b and therefore the judgement in Slades  case which be resolve by the advice of all the judge in the exchequerchamber  in Elizabeth as appear in the c four part of my report f in effect overrule  this point for if a action on the case on e in the city of London v wood Mod  it be say by holt CJ that the reason give by coke that the labourer be  compellable to serve a be no reason for though he be bind to serve the other  be not bind to take he but the reason be because it be hard the master shall  be put to wage his law but rather that the plaintiff shall be put to prove his  retainer by the statute Vid black command a   light a roll b roll Br Det Br  exec salk c   light a roll Br Det Br exec d   b   light a godb h Fitzherbert  lie e Fitzherbert lie h a Br lie gager e   b f Br lie gager a Fitzherbert exec  Br exec Br Det Br labourer Fitzherbert lie Br lie gager c   a b coke report a  er p assumpsit lie upon every contract executory thence it follow that  forasmuch as the testator can not wager his law that the action shall lie  against his executor and therefore also it be true that a action on the d  assumpsit make by the testator will lie against executor because in such  action the testator can not e wage his law as in the same case a action of  debt lie not against executor because in such action the testator may have  wage his law so no birthright or privilege of the subject be take away by this  resolution but thereby justice and right be advance for as much as the  creditor shall be pay his just and true debt and the executor who in truth  have the good in another right see to pay the debt c of the testator shall not  convert they to their private use without pay the just and true debt of the  testator for that will be against justice and right and against the office of  executor who be but minister and dispenser of the good of the dead and  notwithstanding the testator death yet the debt remain for death be no  discharge of the debt and it will be a great defect in the law that no remedy  shall be give for it f curian domini king to withdraw non debet  conquerentitibus in the whole of the laws perquirend W cap vide doctor and  student lib c debt due by bind shall be pay by executor before debt by simple  contract and debt bysimple contract before legacy which prove that the debt by  simple contract remain due and Payable after the testator death and that it  shall be pay before legacy for which remedy be give in the ecclesiastical  court and therewith agree e b and debt that g simple contract shall be pay  before the reasonable part of the wife and child vide e b h a coke a as to the  other objection that this personal action of trespass on the case h noritur  cum mask although it be term trespass in respect that the breach of promise be  allege to be mix with fraud and deceit to the special prejudice of the  plaintiff and for that reason it be call trespass on the case yet that do not  make the action so annex to the person of the party that it shall die with the  person for then if he to who the promise be make die his executor shall not  have any action which no man will affirm and a action sur assumpsit upon good  consideration without specialty to do a thing be no more personal I e annex to  the person than a covenant by specialty to do the same thing f d Cr James blow  b e   light a TR   a Bulwers case   a   b Inst   light a post b g Swinb h Ant  a Inst keb h b Bulstr f where the cause of action be find upon any malfeasance  or misfeasance be a tort or arise ex fault such as trespass for take good c  trover false imprisonment assault and battery slander deceit divert a  watercourse obstruct light escape and many other case of the same kind in  which the declaration impute a tort do either to the person or to the property  of another and in which the plea must be not guilty by the commonlaw the rule  of action personalia noritur cum persond apply Le mason v Dixon W Jones SC  latch hold v Bradford t raym carter v Fosselt palm Perkinson v Gilord cro car  SC W joe Kinsey v Hayward I Lord raym Hamble v Trott Cowp but now by stat  Edward c executor when the testator good have be take away in his life time  shall have a action against the trespasser and recover their damage in like  manner as they who executor they he shall have have if they be live and this  remedy be extend to executor of executor by stat Edward and by a equitable  construction of the statute a executor or administrator shall now have the  same action for any injury do to the personal estate of the testator in his  lifetime whereby it be become less beneficial to the executor as the testator  himself may have bad whatever the form of action may be mason v Dixon latch  Emerson v Emerson vent Smifh v Colgay cro Elizabeth and Vid Wilson v Knubley  east therefore a executor shall have quare hinder for a disturbance in the  life time of the testator sale v bishop of Coventry I Anders coke report b er  p now for authority in law judgement and resolution the case in e journey  north cite in Northwoods case in Plo Com a in case of debt the case anon Leon  trespass or trover russell case   a Le mason v Dixon W Jones Rutland v Rutland  I cro Elizabeth so a executor may have ejection firm for the ouster of his  testator h b brook ab exhort Russell v Pratt cite I Anders so he may have debt  on stat Edward for not set out tithe due to the testator holl v Bradford side  Morton v Hopkins side moreton case Ventr so for a false return make in the  life of a testator to a be made fa William v grey Lord Raymond SC salk Mod so  for a escape of one take in execution Berwick v Andrews Lord raym it be there  say he shall not have a action for a escape out of custody upon mesne process  Vid anon Mod but Vid roll ab execution p where it be say he shall have a  action upon such a escape so the executor shall have a action of debt on a  judgement against a executor suggest a devastavit in the life time of  plaintiff testator Berwick v Andrews salk SC Lord raym so also he shall have a  action for remove good before the landlord his testator be pay a year refit  Palgrave v Windham strange for other instance Vid Com dig Adminis b with also  sergeant williams note l Wheatley v lane sand where it be state that the  remedy give by Edward be extend to administrator by stat Edward c this seem to  be a mistake for Edward give a action to the administrator to recover as  executor the debt due to the intestate the administrator right to bring action  for a tort do to the intestate personal property in the life time of the  intestate be find upon a equitable construction of stat Edward Vid smith v  Colgay cro Elizabeth the rule action personalia noritur cum mask still hold in  respect of the person by who the injury be commit except in some case such as  take away good which still continue in specie after the death of the testator  in which case the party grieve may have replevin or detinue Le mason v Dixon W  Jones SC Latch or if the good have be sell by the testator a action for money  have and receive lie against the executor Hamble v Trott Cowp a action on the  case lie against the executor of a decease rector c for dilapidation the  reason assign by Lord CJ Willis be that it be not consider as a tort in the  testator but as a duty which he ought to have perform and that therefore it be  not contrary to the rule action personal noritur cum mask seller v Laurence  will but as it be well observe by the editor of the last edition of sander  report this action be in form a action in tort and can possible be frame in  assumpsit as on a contract and the action be not contrary to the rule under  discussion inasmuch as there can be no person to sue during the life of the  testator and ail action can be say to die with the person which can have no  existence during his life note a Wheatley v lane sand a the rule in question  never extend to such personal action as be find upon a obligation contract  debt covenant or any other duty to be perform for there the action survive  latch Perkinson v Gilford Hamble v Trott where sup also where the plaintiff  have his option to declare in case or assumpsit against the testator in his  life time for a injury do to his personal property as in some action against  carrier he may have a action of assumpsit against the executor Hamble v Trott  where sup per Lord Mansfield Powell v Layton n r per sir I Mansfield but the  rule that the executor may have a action upon a contract make to the testator  must it will seem be understand with the limitation that the breach of the  contract be such as be a direct injury to the personal estate of the testator  and therefore the executor can have a action of assumpsit for a breach of  promise of marriage where no such special damage be aver in the declaration  chamberlain v Williamson m S No action of account lie by the commonlaw either  for or against a executor because the account rest in the privity and  knowledge of the testator only   Litt b Inst this action be give to executor  by stat Edward c and against executor by stat and Ann c the stat Edward do not  extend to injury do to the person or to the free coke report b er p in a h a b  which be enter term mich h rot between Oliver b Cleymond plaintiff and Robert  Vincent and Thomasin his wife executor of the testament of Robert Penson  defendant the record of which case I have see and there the plaintiff declare  that whereas communication be have between one Roger Penson and the say Oliver  for six barrel of salt salmon from the house of the say Oliver to the value of  to be buy by the say Roger of the say Oliver the say Robert Penson desire and  request the say Oliver to sell and deliver to the say Roger the say six barrel  and assume and promise for himself his executor c to the say Oliver quod ipse  executor seu appointed Himself speech sex libras pro barrellis et fish prd  prfato olivero infra One annum extunc neighbor sequen beneetfidelitur  solvereetcontentore to withhold the same Oliverus speech adoption et promise  prd rob Penson fide to hold toward good et merchandise svan prd prfat Rogero  ad desiderium et requisition speech bob Penson ei ut prmittitur fact pro  predict scales Himself ut prefertur solvendo adtunc et ibidem to sell to give  up et to weigh well and declare that the say Robert Penson in his life nor the  defendant after his death do not pay the say c and allege in the declaration  quod bonaetcatalla Self roberti sufficient ad solvendo ease sex balance et in  all respects alian debt is owed the same roberti solvendo in manus prd ro  Vincent Thomasin exist c which good they have convert to their own use ad  damnum the defendant protestand quod prd billi minus sufficient be in lege ad  how ii bob Vincent et Thomasina necessary non to have nec per law terr to hold  responders for plea say that the say Robert Penson do not assume and promise  to the say Oliver c modus et form c upon which issue be join and try before  sir I Fineux chief justice of the king bench by nisi prius and find for the  plaintiff coke b and damage assess to upon which verdict the court take advice  till Hilary term and then the judgement be entered etsuper hoc look et per cur  dom king hic carefully inspect omnibus et one prmissis matura and deliberation  superinde condition to look at closely be quod prd Oliverus recupere versus  prfat robertum Vincent financial loss svan prd per a swearer in form prd  sitting beside one c which I have report out of the record itself at length to  the intent the reader may be assure of the truth of the say case which  judgement be give in the king bench with so great deliberation by sir Jo  Fineux Conishy and other his companion judge of profound knowledge and remain  yet of record in full force ought not to be discredit or disgrace by the bare  say of a judge upon a sudden motion at the bar and it be to be observe in the  same case of h a that Knightley give the true reason why no writ of debt will  lie against executor know because the testator may have wage his law and the  executor can do it and therefore they be not Chargeable in a action of debt  and Knightley further say in the exchequer it be a common course that the king  debtor shall have a a quo minus against the executor of their debtor who be  indebt to they by simple contract to which the same judge answer it be not so  and there be no such course in the exchequer and the law be quite otherwise  which be apparent by that which have be say before that the judge deny upon  the sudden the law in this point and that which be the common course of the  exchequer which judgement so give be a lead case to many other not only in the  king bench where the judgement be give but also in the common plea and  therefore hill h rot in banc a action on the case upon assumpsit of the  testator for debt be bring against executor who plead full administer and in  the book of entry title action sur Le case division debt pl action on the case  in the king bench against executor upon assumpsit make by the testator of Mars  h upon sale of corn to he and ibidem pl another action on the case in the king  bench against administrator hold of the testator a executor or administrator  can therefore have action of assault and battery false imprisonment slander  deceit for divert a watercourse obstruct light nor action of trespass de  enclosed space to break in pieces nor for cut tree c for such action till die  with the person W Jones latch vent bro executor sergeant williams note to  Wheatley v lane where sup a blow a Br action sur Le case Fitzherbert exec b  Plowd a b post a a   light a king b way coke report a er p upon assumpsit by  the intestate of Mars h upon a contract for carpenter ware and ibidem in the  division payment pl the like action in the king bench by executor against  executor upon assumpsit for repayment of money which be before deliver if a  marriage shall not take effect and the like action you may see in the court of  common plea mich Elizabeth rot in the time of sir James dyer chief justice of  the common plea a action on the case by h b Beecher coke a and other executor  of Henry Beecher against whether Mountjoy administratrix of job Bonham Knt  upon assumpsit of the administratrix in consideration that administration be  commit to her and that she have asset to pay c assumpsit super see ad solvend  l in which sir John the intestate be indebt to the say h Beecher the testator  the defendant plead non assumpsit and find against her and judgement be give c  general et non de good death which judgement prove that the debt do not perish  by death and that the administratrix be Chargeable to pay it otherwise there  be not any consideration pasch Elizabeth rot in the time of sir Edmund  Anderson chief justice of the bench in a action on the case by Johan Michael  executrix of Ralph Michael against William trial and other executor of John  arundel Esq super adoption fanctam per prd johan Arundel in consideration that  the say Ralph Michael in vita svan vendidissetet deliberasset eiden John to  visit merchandise c super see assumpsit to pay c the defendant plead non  assumpsit and judgement be give de good testae Trinit Elizabeth rot in a  action on the case by horn against borough executor of borough upon a promise  make by the testator in consideration that the plaintiff have sell the  testator good et catalla etcetera assumpsit ad solvendo etcetera and upon non  sum shape plead judgement be give for the plaintiff and a multitude of  judgement have be give in the king bench in the like case and the justice rely  much upon the case in hill Ph man in the king bench between Norwood and read  blow Com where it appear that upon a demurrer in law upon the declaration it  be adjudge that the action upon assumpsit make by the testator be maintainable  against the executor upon a contract for wheat in which case the judgement  give in h in a Cleymonds case be approve so that upon all these authority  judgement and resolution and for the reason aforesaid be in number three that  the testator can not wage his law that after the death of the debtor the debt  remain and that it will be a defect in the law if no remedy shall be provide  for it it be more consonant to justice and common right that the just debt  shall be pay than the executor who have the good in another right shall  convert the good to their private use without pay the testator debt it be  unanimous open long and mature deliberation adjudge that the judgement give in  the king bench shall be affirm and you who make payment or other satisfaction  of debt take acquittance or sufficient proof of the payment or satisfaction  thereof or otherwise you or your executor or administrator will be in danger  of pay it again coke b last it be resolve in this case that it be not  necessary to h aver that the defendant have asset to pay legacy as it be also  resolve in the say case between Norwood and read for debt upon c simple  contract be to be pay before legacy and the report of the say case of d h as  to the averment for payment of legacy be not warrant by the record for in the  record the averment be only take that the executor have asset to pay all debt  and in mich Elizabeth in a action on the case bring by Codington e against  hulet as executor c upon a assumpsit make by the testator for payment of a  debt the defendant plead non assumpsit and it be find against he and in arrest  of judgement it be move that the declaration be insufficient because the  plaintiff have not aver that the defendant have asset to b   Ent b pl c roll  postea a a h a b Ant a blow a b b Brownl post a roll Cr James Plowd a c Doct  and Stud b roll d h a b Ant a a Plowd b e Cr Elizabeth roll coke report a er p  satisfy the testator debt and it be adjudge by sir Christopher Wray sir Thomas  gaudy and the whole court that the declaration be good enough and the it shall  come in on the defendant part as in a action of debt against executor or  against the heir no averment be take in the declaration that they have asset  and the law intend that every man will in discharge of his conscience leave  asset to pay all the debt which he ought to pay to any g