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1827.

the expression there used is sufficiently extensive to authorize the right contended for, unless it be limited either by

The KING other sections of the same act, or by strong grounds of convenience or inconvenience. But all the other sections

FYLINGDALES. of the statutc, from which the surveyor derives his authority to act, do in express terms confine such authority to the particular district for which he is appointed, ss. 12, 25, 27, 41, and 63. So also in the 1st sect. of 54 Geo. 3, c. 109. If, therefore, it had been the intention of the legislature so to confine his power in this particular respect, they would have used the same restrictive expressions. The arguments of convenience or inconvenience are in favour of the presentment as it stands. Many cases might be put, in which the beneficial exercise of his duty would be materially promoted, by investing a surveyor with the power contended for; e. g. the inability, from illness or other causes, of a presenting magistrate to view, or of the particular surveyor to inform; and no inconvenience can arise from it, inasmuch as the surveyor's information must ultimately be canvassed before a jury. It is, therefore, immaterial what surveyor presents; and as the extended interpretation will facilitate the amending and keeping in repair the public highways of the country, which is the declared object of the Highway Acts, the Court will, of two indifferent constructions, adopt that best calculated to promote such an end. [Bayley, J. Could a surveyor act out of the county?]

J. Williams, contrà. In a question of jurisdiction, the magistrate must bring himself within the provisions of the statute. This is familiar to the Court, in cases of conviction. (Here the Court stopped him).

general quarter sessions, or the major part of them, may, if they see just cause, direct the prosecutions upon such presentments as shall be made at the quarter sessions, as

aforesaid, to be carried on at the general expense of such limit, and to be paid out of the general rates within the same."

1827.

Lord Tenterden, C...We are all of opinion, that his not being shewn to be a surveyor of the particular district is fatal. In all other parts of the act this is expressly required.

The KING

V.

FYLINGDALES.

BAYLEY, J.--" Surveyor,” must mean the surveyor of the district.

HOLROYD, J.-The words "any surveyor," must be understood with reference to the subject matter.

Rule absolute.

money had

CHARLES ASHBY V. ANN ASHBY and THOMAS ASHBY,
Executrix and Executor of Charles Ashby, deceased.

713 HH1 A count in as- INDEBITATUS assumpsit on the money counts. The sumpsit for

first count was for money paid by the plaintiff to the use and received by defendant,

of the defendants, as executrix and executor. The second as executor, to was for money had and received by the defendants, as the use of plaintiff,

executrix and executor, to the use of the plaintiff. And cannot be

the third was for money due to the plaintiff from the dejoined with a count for fendants, as executrix and executor, upon an account stated money due to with them as executrix and executor of money due from plaintiff from defendant, as them, as executrix, &c. Demurrer to the declaration, executor, upon assigning for cause, that the plaintiff in the declarastated with

tion complained of defendants as executrix and executor, him of money due from him whereas he ought to have declared against them in their as

Quere, whe- personal character only; and that it appeared by the ther the latter declaration that the defendants could not owe the money count can be joined with a

demanded of them, to the plaintiff, inasmuch as he sued count for

them as executrix and executor (a). Joinder in demurrer, money paid by plaintiff, to the

(a) The grounds of demurrer as ally, while the third count charged use of defend- stated in the margin of the paper

them in their representative characant, as executor.

books, were, first, that the first and ter: and therefore that the declasecond counts of the declaration, ration was bad for a misjoinder of or, at least the second, if tenable at counts : and secondly, that the first all, charged the defendants person- two counts were bad, for charging

Miller, in support of the demurrer. This declaration is bad upon two grounds ; first, there is a misjoinder of counts; secondly, there is not a sufficient consideration shewn. First, all the counts aver the promises to have been made by the defendants as executors; but the first and second charge the defendants personally, and the third charges them in their representative character. The counts, therefore, will not admit of the same pleas being pleaded to them all : nor will they all sustain the same judgment ; for the judgment upon the first two, would be de bonis propriis ; and the judgment upon the third, would be de bonis testatoris. With respect to the first count, which is for money paid, no case can be found in which it has been expressly decided, whether an action against an executor for money paid to his use, as executor, can or cannot be sustained, so as to charge him de bonis testatoris. But there are many authorities to shew that an action against an executor for money, lent to him as executor, cannot be sustained so as to charge him de bonis testatoris. Rose v. Bowler (a); Powell v. Graham (6). Now, the principle appears to be the same with respect to the action for money paid ; for what difference is there between a man lending money to an executor, to be paid for the purposes of his testator, and paying money, at an executor's request, for the purposes of his testator? In each case, there is a new contract entered into, subsequent to the death of the testator; and under such a contract an executor can be liable only in his personal character. Here, the first count raises a perfectly new cause of action, wholly unconnected with the testator, and which did not exist at the time of his death. It is different from a promise on an account stated, because there no new cause of action is raised; it iş but a promise to pay

1827.

ASHBY

ASHBY.

the defendants as executrix and executor, whereas the only judgment such counts could sustain, would be de bonis propriis,

(a) 1 H. BI, 109.

(6) 7 Taunt, 580, 1 J. B. Moore, 305, S.C. And see Ellis v. Bowen, Forrest, 98.

1827.

ASHBY

ASHBY.

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a subsisting debt: and even in the case of an account
stated, if it were of money received by the executor, as
such, and not due at the time of the testator's death, he
would be personally liable, because then a new cause of
action would be raised, and not a subsisting one acknow-
ledged. A count in assumpsit against husband and wife,
administratrix with the will annexed, on promises by the
testator to pay rent, cannot be joined with counts on pró-
mises by the husband and wife, as such administratrix, for
use and occupation by them, after the death of the testa-
tor; as in the one case the defendants were personally
liable, while in the other, they were only so 'to the extent
of assets. Wigley v. Ashton (a). Executors are liable
personally on a promissory note drawn by them, as execu-
tors, Child v. Monins (b); because it is a new contract on
their part, to which their testator was no party. In every
case in which it has been held that executors might
be charged in their representative character, it will be
found that there was an obligation on the part of the tes-
tator, arising from an actual or implied contract of his own.
The assets cannot be bound by a new contract of the exe-
cutor, entered into after the testator's death ; for the
exécutor has no power to make the testator contract, as it
were, a new debt; it is the duty of the executor to pay the
debts owing when his testator died, and if he contracts
fresh ones, he must be personally responsible for them.
Upon these authorities and principles, it seems clear that
the first count charges the defendants personally, and
would sustain a judgment de bonis propriis only, and there-
fore, cannot be joined with the third count, which charges
them in their representative character, and would require
a judgment de bonis testatoris. Then the second count,
which is for money had and received, is clearly open to the
same objection; and so decisive are the authorities upon
this point, that it seems unnecessary to argue it upon
(a) 3 Barn. & Ald. 101.

(6) 5 J. B. Moore, 282, 2 Brod.
& Bingh. 460, S. C.

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1827.

ASHBY

V.

principle. Rose v. Bowler (a): Jennings v. Newman (6); Brigdon v. Parkes (c); Powell v. Graham (d); 2 Wms. Saund, 117 d. It must, indeed, be admitted, that there are cases in which it has been held that executors might sue, as such, for money had and received, money paid, and money lent; Petrie v. Hannay (e); Cockerill v. Kynaston (f); Ord v. Fenwick (g); Webster v. Spooner (h); but even in those cases, the distinction already pointed out between contracts made by executors after the death of their testator, and those made by the testator himself, in his life-time, is attended to; and in one of them (Petrie v. Hannay) it was expressly held that a plaintiff cannot join in the same declaration, a cause of action as executor, with another which accrued in his own right. The older cases upon the subject proceed upon the same principle, and in one of them the same distinction is laid down with great clearness, with reference to the question of costs. In Nicolas v. Killigrew (i), the rule was thus laid down by Treby, C. J., and Powell, J. “In all cases where an executor or administrator sues for a debt or other thing belonging to the testator, &c., and grounds his action upon the same contract that was to the testator, he shall not pay costs if he fail in the suit; but if he grounds his action upon a contract expressed, or by implication, and operation of law, which accrues to him after the death of the testator, there the action lies in his own name, and the naming him executor, &c., is void, and he shall pay costs.” Then as both the first counts would sustain a judgment de bonis propriis, they cannot be joined with the third, which being for money due from the defendants, as executors, upon an account stated with them, as such, will, according to the case of Powell v. Graham (k), support a judgment de bonis testatoris, only. It may be contended on the other side, that (a) 1 H. Bl. 108.

AshBy.

(f) 4 T. R. 277. (6) 4 T. R. 347.

(g) 3 East, 104. (c) 2 B. & P. 424.

(h) 3 Barn. & Ald. 360. (d) 7 Taunt. 580, 1 J.B. Moore, (i) 1 Lord Raym. 437. 305, S. C.

(k) 7 Taunt. 580, 1 J. B. Moore, (e) 3 T. R. 659.

305, S. C.

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