(i) Lord Abinger, C. B., Raymond v. Fitch, 2 C, M. & R. 538, 599, 5 Tyr. 985; Lucy v. Levington, 2 Lev. 26, 1 Ventr. 175; Bacon's Abr. Executors and Administrators, N.

(j) Com. Dig. Covenant, B. 1, Administration, B. 13; Morley v. Polhill, 2 Ventr. 56, 3 Salk. 109; Smith v. Simons, Comb. 64.

(k) 1 M. & Sel. 355; 4 M. & Sel. 53; King v. Jones, 5 Taunt. 418. Along with the authority of this case seems to fall also the doctrine on which it was founded, and of which so much is made in the books (see Williams on Executors, 1st ed. 519; 1 Lomax on Executors, 292), that an action can in no case be maintained in the name of the executor, unless an injury to the personal estate appears. In England the Court of Exchequer have gone as far as they can without quite overthrowing Kingdon v. Nottle. See the opinion of Lord Abinger in Raymond v. Fitch, 2 C, M. & R. 596, 600, and the still later case of Ricketts v. Weaver, 12 M. & W. 718, where Parke, B., said: "The question, therefore, is reduced to this, whether an executor can sue for the breach of a covenant to repair in the lifetime of the lessor, who was tenant for life, without averring special damage. On that point Raymond v. Fitch, in which all the cases were considered, is an authority directly in point, and ought not to be shaken. The result of that case is, that unless it be a covenant in which the heir alone can sue (according to Kingdon v. Nottle and King v. Jones) for a breach of the covenant in the lifetime of the lessor, the executor can sue, unless it be a mere personal contract, in which the rule applies that actio personalis moritur cum persona. The breach of covenant is the damage; if the executor be not the proper person to sue, the action cannot be brought by any one." In this country, where the courts are free from the shackles which the authority of Kingdon v. Nottle and kindred cases imposes, it is reasonable to believe that the later doctrine (which is also the older doctrine) as to actions by executors, will be carried to its full extent. See Clark v. Swift, 3 Met. 390.

(l) Greenby v. Wilcocks, 2 Johns. 1; Mitchell v. Warner, 5 Conn. 497; Beddoe v. Wadsworth, 21 Wend. 120; Clark v. Swift, 3 Met. 390; Hacker v. Storer, 8 Greenl. 228, 232; 4 Kent, Com. 472. - The case of Kingdon v. Nottle has, however, been substantially followed in Ohio and Indiana. Foote v. Burnett, 10 Ohio, 317; Martin v. Baker, 5 Blackf. 232.

(m) Comyns's Digest, Administration, B. 13; Bacon's Abridgment, Executors and Administrators, N.; Morley v. Polhill, 2 Ventr. 56, 3 Salk. 109; Smith v. Simons, Comb. 64; Lucy v. Levington, 1 Ventr. 176, 2 Lev. 26; Raymond v. Fitch, 2 C, M. & R. 588; Ricketts v. Weaver, 12 M. & W. 718; Carr v Roberts, 5 B. & Ad. 84, per Parke, J.

1 The executrix of a railway passenger who, after an interval, dies in consequence of an accident, may recover, in an action for breach of contract against the railway company, the damage to his personal estate arising in his lifetime from medical expenses and loss occasioned by his inability to attend to business. Bradshaw v. Lancashire, etc. R. Co., L. R. 10 C. P. 189; but not in an action of tort. Pulling v. Gt. Eastern R. Co., 9 Q. B. D. 110. See Leggott v. Gt. Northern R. Co., 1 Q.

and so strong is this rule, that it prevails against special words of limitation in the contract itself. (n) But contracts may be extinguished and absolutely determined by the death of the party with whom they are made. (o) If money be payable by a bond to such person as the obligee may appoint by will, and the testator makes no appointment by his will, the debt dies, as the executor is not considered his appointee for that purpose. (p) Nor could an administrator, where there was no will, claim the money.

The law raises no implied promise to the personal representative, in respect to a promissory note held by the deceased. (q)

* Where the contract with the deceased is of an execu- tory nature, and the personal representative can fairly and sufficiently execute all that the deceased could have done, he may do so, and enforce the contract. (r) 1 But where an executory contract is of a strictly personal nature, - as, for example, with an author for a specified work, - the death of the writer before his book is completed absolutely determines the contract, unless what remains to be done - as, for example, the preparing of an Index, or Table of Contents, etc., can certainly be done, to the same purpose by another. (s)

(n) Devon v. Pawlett, 11 Vin. Abr. 133, pl. 27. Somewhat analogous to this is the point stated in Leonard Lovies' case, 10 Rep. 87 b, that a chattel interest in land cannot be entailed.

(o) For example, the right to recover for the breach of a promise to marry does not pass to the executor. Chamberlain v. Williamson, 2 M. & Sel. 408; Steb-bins v. Palmer, 1 Pick. 71. And so in other cases where the injury is personal, though accompanying a breach of contract. Parke, B., Beckham v. Drake, 8 M. & W. 854; Lord Ellenborough, C. J., Chamberlain v. Williamson, 2 M. & Sel. 415, 416; Cook v. Newman, 8 How. Pr. 523. But see Knights v. Quarles, 2 Br. & B. 104.

(p) Pease v. Mead, Hob. 9. And the reason given is that the payee in that case is evidently to take for his own use, for the word pay " carryeth property with it; " whereas the executor, when he recovers as assignee in law of the testator, takes for the use of the testator.

(q) Therefore the executor in bringing an action upon such note, must declare upon the promise to the testator; unless an express promise to the executor can be shown. Timmis v. Platt, 2 M. & W. 720.

(r) Marshall v. Broadhurst, 1 Tyr. 348, 1 Cr. & J. 403. See Werner v. Humphreys, 3 Scott, N. R. 226. - E con-verso, the personal representative is bound to complete such a contract, and, if he does not, may be made to pay damages out of the assets. Wentworth v. Cock, 10 A. & E. 42; Siboni v. Kirkman, 1 M. & W. 418, 423; Smith v. Wilmington, etc. Co. 83 Ill. 498. - Where several persons jointly contract for a chattel, to be made or procured for the common benefit of all, and the executors of any party dying are, by agreement, to stand in the place of such party dying, although the legal remedy of the party employed would be solely against the survivors, yet the law will imply a contract on the part of the deceased contractor, that his executors shall pay his proportion of the price of the article to be furnished. Prior v. Hem-brow, 8 M. & W. 873, 889.