debet and detinet both; that is, because the representative both owes and detains the rent.50 31. But if a portion of the rent accrued during the life of the lessee, and a portion of it after his decease, both claims cannot be joined in the same declaration, unless it is brought in the detinet only, with a view to charge the executor or administrator in his representative capacity only.51 32. It seems to be settled, that the executor who enters into possession of the demised premises will be held personally responsible for the payment of the rent, the same as an assignee, in terms.52 But if the executor desire to relieve himself from personal responsibility, when he is sued as assignee, he cannot do so by denying the fact that he is such, this being sufficiently proved, in law, by showing him to be the executor of the lessee; but he should allege that he is no otherwise assignee than by being executor, and that he has never entered, or taken possession of the demised premises. And he may exonerate himself from all responsibility, as executor, by pleading and showing that the term is of no value, and that he has fully administered all assets which have come to his hands.53 50 Jevens v. Harridge, 1 Saund. 1, and notes and cases cited. And it is immaterial whether, in such action, in the debet and detinet, the representative be named as such or not; for if it be alleged that he both owes and detains the rent, it will be construed as an action to charge such representative in his personal capacity. 2 Wms. Exrs. 1587, 1588; Lyddall v. Dunlapp, 1 Wils. 4, 5; Caly v. Joslyn, Aleyn, 34. But the more natural and reasonable mode will be, where it is desired to charge the representative personally, not to name his representative capacity. 51 Salter v. Codbold, 3 Lev. 74; Aylmer v. Hyde, Selw. N. P. 7th Amer. ed. 623. 52 Buckley v. Pirk, 1 Salk. 316, 317; Tilney v. Norris, 1 Ld. Ray. 553; s. c. Carth. 519. See Wollaston v. Hakewill, 3 Man. & Gr. 297, where the subject is very learnedly discussed, both by counsel and court. 53 Tindal, Ch. J., in Wollaston v. Hakewill, 3 Man. & Gr. 297, 321. The executor, whether he take possession or not, is liable, to the extent of the assets, for rents unpaid, whether the term is of any value or not. Howse v. Webster, Yel. 103, and Met. note. 33. But if the term is of any value, the executor is liable to that extent in his personal capacity, if he take possesion. If, therefore, the use be of any value, he must confess that and plead to the remainder of the claim.54 The executor is responsible for all the profit he might have derived from the premises by the exercise of reasonable diligence.55 In one case where the administrator of the lessee took possession of the premises, upon the death of the lessee, which proved wholly unproductive, and after eight months the administrator offered to surrender them to the lessor, it was held that he was not chargeable.56 34. The same or similiar rules prevail in the American states. Thus, it has been held, that the personal representative of the grantee in fee is liable in covenant for the rent, where the grantee has covenanted for himself and his personal representatives to pay rent in fee.57 And the same rule prevailed in Pennsylvania, before the case of Quain's Appeal,58 since which it has been considered, that as ground-rents are perpetual in their nature, it could not be made consistent with the character of the office of executor or administrator that any such perpetual obligation should be devolved upon them. The point is very elaborately and clearly argued by Mr. Justice Lowrie, and it seems difficult to escape from the force of his reasoning, or the justice of his conclusions. 35. It will follow from what has been already said, that where the lessee assigns the term, during his life, the personal representative will not be liable, as assignee, although he may be so held upon an express covenant to pay rent. And he may be liable, in debt, in the detinet, for the rent, as executor, unless the lessor have received rent from, or in some way accepted the assignee for his tenant.59 And the mere acceptance of the assignee, by the lessor, for his tenant, will not exonerate the personal representative of the lessee from liability upon an express covenant to pay rent to the lessor, unless there is some evidence to show that it was understood such acceptance should exonerate the lessee and his representative.60 But if the personal representative assign the term, he is only liable for rents accruing during his time, upon the general principle already stated."1 36. But it has been held, that the grounds of exemption of executors and administrators from responsibility for rent do not apply to the case of a covenant to repaif; and that where the executor has occupied the premises, it is no excuse for not performing the covenant of his testator the lessee, to keep the premises in repair, that they had yielded no profit.62 And the addition of the plea of plene administravit and of an offer to surrender before breaches occurred, will make the defence good.62 And where the executors enter and occupy the premiscs, an implied obligation results therefrom, and from the lessor abstaining from giving notice to determine the lease, that the executors are content to be bound by all the stipulations of the lease, on the part of the lessee.63 "Helier v. Casebert, 1 Lev. 127. Leigh v. Thornton, 1 B. & Ald. 625. It was here held that the statute of limitations was a good defence to an action for rent against one who had once been tenant from year to year, but who had not, within the last six years, occupied the premises, paid rent, or done any act from which a tenancy could be inferred. 61 Ante, pl. 27, and cases cited. After such assignment the executor is not liable, except upon the express covenants of the lessee, and then only in his representative capacity, and to the extent of assets in his hands. Wilson v. Wigg, 10 East, 313. 62 Tremeere v. Morison, 1 Bing. N. C. 89. The ground of the distinction seems to be that the breach of a covenant to repair is in the nature of waste, and the executor is held liable for all waste, whether permissive or voluntary. Ives v. Sammes, 2 Anders. 51. See also Hornidge v. Wilson, 11 Ad. & Ell. 645. Buckworth v. Simpson, 1 Cr. M. & Rosc. 834. This was where the demise 37. If the demise is for years, and not under seal, the entry of one of the executors will not so inure, on behalf of both, as to render them both liable for use and occupation.64 38. As we have before intimated, it seems to be settled, as the general rule, in the absence of particular covenants to the contrary, that covenants in indentures of apprenticeship, both on the part of the master and the apprentice, will terminate with the life of either, being strictly of a personal character on the part of both. But it is said, in some of the cases, that the estate is bound to maintain the apprentice, which seems inconsistent with the rule already laid down, unless he can be required to serve another master, according to the custom of London,66 or unless it is so restricted as to operate only to the extent of keeping him from becoming a public burden to the town or parish, which is probably all that is meant. 39. It is scarcely necessary to repeat here the rules of law applicable to the husband's responsibility for the debts of the wife. He is liable, only during the coverture, for debts contracted by the wife before marriage, unless, and to the exent, he may receive assets as her representative; and for her debts contracted during coverture he is only responsible to the extent of her agency on his behalf, and that will be terminated by his death, whether known to the party giving the credit or not.67 And his representative will only be responsible for the payment of such debts of the wife, contracted before marriage, as he assumes during the coverture; and for those contracted during coverture, to the extent of her agency. was in writing but not under seal, and was for one year certain, and then from year to year, so long as the parties should think proper, with power to determine it, by notice to that effect from either party. See also Arden v. Sullivan, 14 Q. B. 832, 840. "Nation v. Tozer, 1 Cr., M. & Rosc. 172. "The King v. Peck, 1 Salk. 66; Baxter v. Burfield, 2 Strange, 1266; ante, § 25, pl. 5. 2 Wms. Exrs. 1599, 1600. 4 "Ibid. 1601, 1602; Blades v. Free, 9 B. & Cress. 167. 40. A good deal of learning will be found in some treatises upon the general subject of the duties of executors and administrators, in regard to the particular forms of action and of defence which may be maintained, either in their favor or against them. But as this pertains chiefly to the subject of procedure, and that is mainly regulated by code, at the present time, in the American states, we should not deem it useful to occupy much space here upon that topic.68 41. In regard to the operation of the statute of limitations, in suits against the personal representative, it is generally considered, that if the creditor intend to rely upon a new promise he must declare upon such new promise, and not attempt to bring it in by way of replication, since that will be a departure in pleading, provided the declaration count upon promises on the part of the deceased.69 But it is claimed to have been held, at nisi prius, in England, that a promise, on the part of the executor or administrator, will sustain the averment of a new promise on the part of the testator within six years. 42. But, as the personal representative has no authority to create debts against the estate, his acknowledgment of the existence of such debts could not properly be said to have any effect in regard to the removal of the statutory bar.71 It has accordingly been held, that nothing short of an express promise will have that effect; 72 and if there be more than one executor or administrator it would seem requisite to prove a joint promise by all in order to maintain a joint action.73 And such an ex 68 2 Wms. Exrs. 1753, 1817. 69 Browning v. Paris, 5 M. & W. 117, per Parke, B., Benjamin v. De Groot, 1 Denio, 151; ante, § 27, pl. 9, 10. TO 2 Wms. Exrs. 1761, n. (z.); Buswell v. Roby, 3 N. H. R. 467. "Atkins v. Tredgold, 2 B. & C. 23, 28, by Abbott, Ch. J. 72 Tullock v. Dunn, Ry. & M. 416. Abbott, Ch. J., in Tullock v. Dunn, Ry. & M. 416; Parke, B., in Scholey v. Walton, 12 M. & W. 510. But the American cases are not entirely harmonious upon this point. In Emerson v. Thompson, 16 Mass. Rep. 429, it seems to |