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Termino Sancti Michaelis, Anno 2 W. & M. In Communi Banco.
Coghill versus Freelove.
IN an Action of Debt for Rent the Plaintiff Declared for 78 l upon three several Demises against the Defendant, as Ad∣ministratrix to Thomas Freelove her late Husband in the Detinet.
The Defendant pleaded, that after the Letters of Administration granted to her, and before the Rent became due, she assigned to Samuel Freelove the Indenture of Demise, and all her Estate and Interest in the Premisses; and that Samuel entred and was possessed, and that the Plaintiff had notice of the Assignment before the Action brought.
To this the Plaintiff Demurrs.
It was said for the Plaintiff, that the Action being brought in the Detinet, the Assignment was no Plea; for the Administratrix is charged upon the Contract of the Intestate, and liable (so far as there is Assets) tho' there be no Assignment. And tho' in the 3 Co. and in the 1 Cro. 555. Overton and Syddal's Case seems the contrary; and so Marrow and Turpin's Case in the 1 Cro. 715. And that the privity of Contract is determined by the Death of the Lesser, yet in Ironmonger and Newsam's Case in Latch 260. the contrary was Resolved. (Note, it did not appear by Latch to be Resolved; but the Chief Justice said it was so Resolved) So in 17 Car. 2. Syderfin 266. in Heylar and Casbord's Case it was Resolved, that the Action lay against the Executor upon the Contract, after an Assignment; where it was held also, that an Executor cannot wave a Term, unless he renounceth the whole Executorship.
After hearing Arguments at the Bar, the Court gave Judgment for the Plaintiff, (Powell absente.) As to Overton and Syddal's Case, it appears by Mo. 352. that Popham and Fenner were against Gawdy and Clench, vide Poph. Rep. 121.
It appears that the Action was brought in the Debet and De∣tinet, and by a Prebend upon the Lease of his Predecessor, and then an Assignment will be a Bar; which matters indeed do not appear to be urged in the Case, as Cited by my Lord Coke, and Reported by Cro. Eliz. 355. But they go upon the privity of Con∣tract, said to be dissolved by the Death of the Lessee. Sed vid. Latch. 261. that Case said not to be Resolved, as cited by Co.