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1827.

BRAMWELL

v. PENNECK.

Littledale, J.--This rule ought to be discharged. I do not enter into the question whether the defendant knew that Richards was named in the warrant, or whether the warrant against the plaintiff was sufficiént. The expression “ labourers employed in any other manner,” does not apply to such a case as this. The labourer must be employed in some description of work in which the justices may fix the rate. This was quite out of their province. If the property was valuable it might be necessary that he should employ other people under him. He might be entitled to one or two guineas a day.

Rule discharged (a). (a) And see Wilson v. Weller, 1 Bro. & Bingh.57 ; post.

۔

John Jones v. Tanner, executor of BeNJAMIN JONES,

deceased. M:75M 522 Assumpsit ASSUMPSIT. First count, for money lent by the plain does not lie for the amount of tiff to the testator. Second count, for money paid by the the plaintiflos plaintiff to the use of the testator. Third count, for distributive share of the money had and received by the testator to the use of the personal estate plaintiff. Fourth count, upon an account stated between of an intestate, admitted by the plaintiff and the testator. In these four counts, the the administrator, to be

promises were laid as made by the testator. The fifth count in his hands. was for money lent to, and paid, laid out, and expended for A fortiori, it will not lie

the use of the testator, and money had and received by the against the

testator to the use of the plaintiff, and upon an account executor of such adminis- stated between the plaintiff and the testator, laying the trator, upon an promise by defendant as executor. Sixth count, on an made by the account stated by the defendant, of money owing by him former.

as executor. Plea-first, non-assumpsit; secondly, to the 1st, 2d, 3d, and 4th counts, a set-off for money due from the plaintiff to the testator ; and thirdly, to the same counts, testator non assumpsit infra sex annos. At the

1827.

JONES

TANNER.

trial at the last Bridgewater assizes, before Burrough, J.(a), it appeared, that Willian Jones, the father of the plaintiff, and of the testator, having died intestate, the testator possessed himself of his personal property, either as administrator to his father, or as executor de son tort. The testator died in July, 1816 (6). It was stated, that this action was brought to recover 791. and upwards, in respect of moneys which the testator had held as the plaintiff's distributive share of their father's property. It appeared that after the death of the testator, the plaintiff's sister applied to the defendant for 701. due to the plaintiff on her father's account. The defendant said it was the plaintiff's right, and he should be paid; and he furnished the following account:

“The net amount of Mr. W. Jones's effects, after deducting debts and other expenses, is as under :

Gross amount 640 3 1
Deduct debts, &c. 221 12 54

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(a) Counsel for the plaintiff, ceeded. The defendant having Wilde, Serjt. and Bayly ; for the obtained a new trial upon the defendant, C. F. Williams and second point, the question upon Carter.

the statute became immaterial. (6) This date is given from the (c) This sum was reduced to learned Judge's report, upon which 731. 195. 10fd. by an admitted setthe judgment of the Court pro- off.

1827.

JONES

V. TANNER,

A servant of the testator's stated that the plaintiff conducted the testator's business for him; and that being together about six weeks before the testator's death, the testator said there was not work enough done, upon which the plaintiff said, “If you'll pay me the 2001. thee hast had of me"-to which the defendant said, “I've had thy, 2001., but I've maintained thee all the while." Upon this evidence, it was objected on the part of the defendant, first, that there was no sufficient admission to take the case out of the statute as to the 2001. (a); and, secondly, that the action could not be sustained upon the promise, and the account furnished by the defendant, inasmuch as no action would have lain against the testator in his own right, for any portion of the produce of the estate of William Jones, the father; and that if the testator could not have been sued in his own right, no action would lie against his executor. The learned Judge overruled both objections, giving leave to move upon the first point; but he refused to reserve the second ; and the Jury found a verdict for the plaintiff, damages 2901.

C. F. Williams having obtained a rule to shew cause why a nonsuit should not be entered, or a new trial had,

Erskine and Bayly shewed cause.

No leave was granted as to the 731., therefore there can be no nonsuit, as the first objection goes only to part of the damages found by the jury. If Benjamin Jones made such a contract as would render him personally liable, the action is maintainable against his executor. [Bayley, J. The promise was made by the defendant, not by Benjamin Jones, this acknowledgment ought only to bind himself.] Benjamin Jones had obtained possession of his father's goods, and this the defendant admits. [Holroyd, J. Does the

(a) The objection as to the date of this recognition was not taken. At the trial, it appeared that the testator made his will in 1822, and

died in 1826. The struggle was not on the date, but on the form, of the acknowledgment.

1827.

JONES

V. TANNER.

executor of an executor de son tort, represent the first testator ? Bayley, J. You don't sue as representative of William Jones. Littledale, J. There is no count charging the defendant with having money. Holroyd, J. Benjamin Jones received the effects of his father, not for any particular party]. As against the defendant who makes the promise, it must be taken that Benjamin Jones received the money to the use of the plaintiff. In Deeks v. Strutt (a), it was held, that no action at law lies for a legacy upon an implied promise from the executor. And Grose, J. relied upon the circumstance of there being no erpress promise in that case. Here, an express promise was proved. They also referred to Gorton v. Dyson (b).

Dyson (6). [Bayley, J. There the defendant was a depositary, and did not hold as an executor. If an executor were to write to a legatee, “I will hold the money to your use, and allow you interest," he would make himself personally liable. Littledale, J. In a case before me in Sussex, a brother appeared to have told his brothers and sisters that he would hold the money which he had received as executor, and would pay them interest; upon which I held, that he was personally liable. Bayley, J. The account does not shew that the money had ever been in Benjamin Jones's hands]. In Powell v. Graham (c), the court of Common Pleas held, that in an action against an executor, on an account stated of money due from him in his representative capacity, he was personally liable. Deeks v. Strutt merely decided that where there is no express promise, a promise will not be inferred. [Bayley, J. This inconvenience might arise. There might be a claim upon William Jones's estate. Would an action lie against an executor to pay a distributive share upon an express promise ?] In Atkins v. Hill (d) it was held, that assumpsit lies upon a promise by an exe

(u) 5 T. R. 690.

(1) 1 Brod. & Bingh. 219; and see 3 J. B. Moore, 558; Gow's N. P. Cases, 78; Manning, N. P.

Digest, 2d edit. 194, 356.

(c) 7 Taunt. 580; aud see 1 J. B. Moore, 305, S. C.

(c) Cowp. 284.

1827.

Jones

V. Tanner.

cutor to pay a legacy in consideration of assets. There an
express promise was proved ; and where an express promise
is proved, the executor must be taken to have assets (a).
[Holroyd, J. Was there any debt from Benjamin Jones be-
fore this account was delivered, even supposing that an ex-
press promise would support an action? Was what Benjamin
Jones received a debt? Bayley, J. By 22 and 23 Car. 2,
c. 19, no distribution is to be made before the end of the
year. The remedy must be in a court where a bond can
be taken as directed by the statute. The personal repre-
sentative of William Jones is the party who ought to
make distribution and take the bond]. The express pro-
mise admits that the plaintiff was entitled to receive the
money, and also that the state of the assets was such,
that no bond would be necessary. The title to the 731.
may be also maintained upon the last count of the decla-
ration. [Bayley, J. Are there not decided cases that an
action will not lie against an executor to charge him per-
sonally without a second consideration ?] The defendant
here must be taken to have admitted that there was
nothing to settle in the Ecclesiastical Court. He admits
that he has money, and that is a good moral consideration,
[Bayley, J. If so, you should have sued the defendant
personally. The assets of the testator ought not to be
bound by such a promise). There was a good moral con-
sideration as against the testator; and the defendant acting
for him, had a right so to promise as to bind the assets.
Then as to the 2001. [Bayley, J. If it had been 1826,
instead of 1816 (6), when the testator died, that point
would have been open to you.]

Bayley, J.-This is one of the most singular actions I have ever known brought. An action is not to be brought here for a distributive share. It is not a common law right, but is given by statute, sub modo.

(u) Vide Reech v. Kennegal, 1 210 b. n.
Vez. sen. 126; 1 Wms, Saund. (6) Vide ante, 422 (a).

The party

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