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1827.

ASHBY

V. ASHBY.

Rose v. Bowler (a), and Brigdon v. Parkes (b), are cases warranting the position that on such a count the defendants may be held personally liable. But Gibbs, C. J., in his judgment in Powell v. Graham, meets that difficulty, and reconciles these apparently opposite cases, for he says, “ Where the money was due from them only as executors, as having been received by their testator, there the judgment would be de bonis testatoris ; but if the money accounted for had been received by themselves, although as executors, there it would be a new contract, which would render them personally liable." Secondly, even if there is no misjoinder of counts here, still the declaration is bad, for not shewing upon the face of any one of the counts a sufficient consideration for the alleged promises by the defendants. The defendants are sued as executors, and to render them personally liable for a debt due from them as executors, there must be a sufficient consideration alleged in the declaration. The words, as executors, cannot be rejected as surplusage (c); and the very nature of the only debts which could be due from the defendants, as executors, in the form described in the declaration, shews clearly that the plaintiff has no cause of action at law, and that his only remedy, if any, is in equity.

Jessopp, contrà. There is no misjoinder of counts here, for the same plea of plenè administravit might be well pleaded to them all. It was decided, in Ord v. Fenwick (d), that a count on an assumpsit to the plaintiff, as executrix, for money paid by her to the defendant's use, might be joined with another count on promises made to the testator ; and the same rule ought to apply in actions against, as in actions by, executors. It is admitted, that it has never been decided, that a count for money paid to the use of an executor, as executor, cannot be joined to another count for money due from an executor, on an account stated with him as executor; and in Powell v. (a) 1 H. Bl. 109.

Et vide (c) See Com. Dig. Pleader, C. Secar v. Atkinson, ib. 102.

29; Bac. Abr. Pleas, I. 4. (6) 2 B. & P. 424.

(d) 3 East, 104.

1827.

ASHBY

V. Ashby.

Graham, where all the cases upon the subject were reviewed, and, as it should seem, reconciled, Gibbs, C. J., said, "A count on a promise made by the defendant as executor, has no force farther to charge the defendant than a count on a promise of the testator. In several cases, the defendant has been charged as promising as executor, and yet he has been held liable de bonis propriis ; but that is, because in those cases the nature of the debt has been such, as necessarily made the defendant liable de bonis propriis. For example, where there has been a count against him for money had and received by him as executor, if he receives the money, he must be personally liable. So, of money lent. So, of money due on an account stated. But this proposition must be confined to the case of an account stated of money received by himself personally. If this distinction be attended to, it preserves all the cases from the charge of inconsistency. Every case, though apparently discrepant, may be reconciled in this mode.” Here the count, on an account stated, evidently applies to money received personally by the defendants ; for it is for money in which the defendants, as executors, were indebted to the plaintiff, on an account stated with them as executors, of monies due from them as executors; therefore they are personally liable on that count: and if so, then, on the authority of that case, it would seem to follow, that thic arsı two counts of this declaration, which, it is contended on t. e other side, charge the defendants personally, may wel be joined with the third.

Lord TenteRDEN, C. J.-I am of opinion that the Court must pronounce judgment for the defendants, on the demurrer in this case. To the last count of this declaration, the plea of plenè administravit would clearly be a good plea ; and that count would as clearly support a judgment de bonis testatoris : the question is, whether the other counts are so framed, that they can properly be joined with the third. If it were necessary, on the present occasion,

1827.

ASUBY

v. ASHBY.

to decide that question with reference to the first count, I should feel great difficulty in saying that the objection made against it ought to prevail ; for, as at present advised, I strongly incline to the opinion, that the count is good; that it would sustain a judgment de bonis testatoris, and that plenè administravit might be well pleaded to it. But it is not necessary to come to any decision upon the first count; because the authorities shewing that the second count cannot be joined with the third, are so numerous, and so decisive, that I feel it impossible to get over them. If the question as to the second count were res integra, I am not prepared to say, that I should express the same judgment upon it as I am now expressing; but I do not feel myself at liberty to overrule the current of authorities upon the subject. The second count clearly charges the defendants personally, and the plea of plenè administravit would be no answer to it: and then, according to decided cases--for I give no opinion of my own upon the point-it cannot be joined with the third count, which charges the defendants in their representative character. Upon that short ground, therefore, we are bound to hold that this declaration is bad, and that the defendants are entitled to judgment.

BAYLEY, J.-I do not know how to get over the authorities in favour of the defendants in this case: otherwise I should be strongly disposed to say that all these counts are good. My reason is not convinced by the decisions the other way; but they are so strong, that I feel myself, however reluctantly, bound by them.

HOLROYD, J., concurred.

LITTLEDALE, J.--I have considerable doubt whether the first count is not good ; but' as: the second is bad, according to all the authorities, our decision need not go beyond that: and I confess that it seems to me the

1827.

authorities are so far right ; for I do not see how the second count, which charges the defendants personally, can be joined with the third, which charges them as representatives inerely.

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Judgment for the defendants, on demurrer (a).

(a) And see Perrott v. Austin, 315; Atkins v. Hill, Cowp. 284; Cro. Eliz. 232; Wheeler v. Col- Brown y. Dixon, 1 T. R. 276 ; lier, ib. 406; Herrenden v. Pala Goldthwayte v. Petrie, 5 T. R. mer, Hob. 88; Scott v. Stevens, 234; Rann v. Hughes, T. R. 1 sid. 89; Davis v. Reyner, 2 350,n; Worrall v. Hand, Peake,N.

Forth v. Stanton, 1 P. C. 73; Catherwood v. Chabaud, Saund. 210; Jenk. 296, pl. 49; 2 D. & R. 271, 1 B. & C. 151. Wallis v. Lewis, 2 Ld. Raym. Com. Dig. Administration, B. 14, 1215; Betts y. Mitchell, 10 Mod. 15, Pleader, 2 D. 2; Toller, 459.

Lev. 3;

HUMPHREYS v. MEARS. CASE, against defendant, one of the trustees of the Trustees of

a turnpikeroads, in a parish in the county of Montgomery, road are not for negligently conducting the alteration of one of the liable in da

mages for an public roads within the parish; whereby plaintiff fell from injury occaone part of the road to another, and broke his leg. The sioned by the

negligence of declaration contained two counts; one, charging the de- contractors, or fendant as trustee, and the other not. Plea, not guilty, ployed under and issue thereon. At the trial before Warren, C. J., and them, in the

performance Jervis, J., at the last great sessions for the county of of public Montgomery, the case was this :—The defendant was one

works on the

unless of the trustees under the General Turnpike Act, 3 Geo. 4, they personc. 126, of the roads in the parish in question. The road in in the managequestion crossed a hill, which the trustees having deter- ment of the mined to lower, by cutting down the upper part, and filling What deup the lower part with the materials, had contracted with gree of percertain persons to perform the work. The contractors had ference would

suffice to renaccordingly commenced this work, by cutting down one der them so

liable; Quare.

road;

works.

1827.

HUMPHREYS

V. MEARS.

side of the upper part of the road, leaving the other side in its original state, for the purposes of traffic, There was, consequently, a precipice of several feet height from the level of one side of the road to that of the other; and no paling or fence of any description was placed between them. The plaintiff was returning homewards ope evening, along the public part of the road, when, in consequence of the darkness, and the want of a fence, he fell over the precipice, and broke his leg; and to recover damages for this injury, the action was brought. It appeared that the defendant lived within 200 yards of the spot where the work was going on, and where the accident happened ; that he was generally on the spot, overlooking the progress of the work, twice in every week ; that he had occasionally given some directions respecting the work ; and that he had been heard to tell the workmen to use every precaution, so as to make the road safe for the public. Upon this evidence, the learned Judges were of opinion, that the action was not maintainable against the defendant as one of the trustees of the road, but ought to have been brought against the contractors. They therefore directed a nonsuit; but, in order to save the expense of a second trial, in case the Court should think the defendant liable, they directed the jury to say, whether they were of opinion that there was negligence on the part of the defendant, and to assess the plaintiff's damages. The jury found "negligence,but without saying in whom, and assessed the plaintiff's damages at 401. ; and the plaintiff then submitted to a nonsuit, having leave to move to enter a verdict, with 401. damages.

Corbett now moved accordingly. The nonsuit was wrong. There was quite sufficient evidence of the defendant's interference in the management of the work, to make him liable, as one of the trustees, for any injury occasioned by negligence in the performance of the work : and the jury have found that there was such negligence;

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