Core's Case
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1794 |
| Date | 01 January 1794 |
| Court | Court of the King's Bench |
English Reports Citation: 73 E.R. 42
King's Bench Division
coke's case. Debt lies against the administrator of one who gave a bill undertaking to lay out money in goods to be shipped for the plaintiffs, but who never executed his commission : though had the money been employed, debt would not lie. 2 Bufct. 256. .Ben. L2(!. [£0 a] (118) In the king's bench in error, the case was thus: 40 E. 3', 50.' " 'J' "' That one John Core, grocer of London, brought an action of debt against the administrators of one George Woddye, and counts upon this hill: " Be it known to all men by these presents, that I George Woddye, of London, have received of John Core the sum of twenty pounds sterling; of which twenty pounds sterling, I, the forenamed George, to bear the adventure of the exchange to Eoan, and there to bestow the said twenty pounds in French prunes, for the behoof and use of the said John, and to see them safely shipped, as I do my own wares; this done, the forenamed John to bear all manner of adventure, and charge from the quay of Roan in France to his own house in the city of London ; in witness whereof, &c." with a seal. (119) And averred in the court, that Woddye had not bestowed the money in prunes ; and upon this the defendants plead plene administraverunt, and found against them; and this matter alleged in arrest of judgment; and yet judgment given. And now there was error in this : That when the aforesaid Core, before the Justices of our Lord the King of the Bench, by his writ of debt required against the aforesaid defendants twenty pounds, and, in maintenance of his writ, declared on a bill made by the testator in his life-time, and in the aforesaid declaration shewn, by which bill (117) M. 40. & 41. El. in C. B. Q Francis Brown v. Henry Eyre. The lord grants to a termor to take bote by the view of the keeper. Anderson holds, that this being in the affirmative shall not alter the law clearly, nor toll the liberty given to the termor by the law, but he may well take without view of the keeper; which Grlanvil agreed to, unless it be as ^ 29. E. 3. 91. that it shall not be lawful to take unless by view of the keeper, &c. (119) In the argument of the case of Breton v. Unmet, M. 41. & 42. Eliz. [Ow. 86.] G-lanvil cited a judgment to have been given in Harford. A. gave money to B. to buy wares, B. did not buy them, and debt was maintained for the money. 1 DYER, 20 b. TRINITY TERM, 28 HEN. 8 43 it appeared evident, that by the law of the land a writ of account might have been brought and maintained against the aforesaid testator in his lifetime, and not a writ of debt ; nor can any writ of debt, by the law of the land, be maintained against the administrator; wherefore they pray judgment, and that the aforesaid judgment be revoked and annulled, &c. (120) Baker, Attorney General, thought that the judgment should be reversed, for no action of debt lies for this against the testator; for the bailment was to such intent, to have an encrease 42 t;. a, a a. and profit of the money, and not the money back, for which money no action of debt lies, but an action of account ; for the money was delivered to the intent of being employed and bestowed in prunes, be. i, n. nr. Debt. b, and not to be preserved entire for the use of the bailor ; for the la "_ "'"ò''' *'"ò ... is taken in our Books to be, that if a man bail money to be bailed int. foi. isu, v\. in. i e. over, if it be not bailed according to the condition, no action of debt H."r! n a. i k 4, '; a. lies, but account, for1 he shall not receive the money to retain it ; 3!)H. 6, 44 1 . n n. 4, a but now since he did not make the delivery over, he was account- 35 u. 'a, s?"i'.' V. y. b. able to the bailor. (121) And it resembles the case in 41. E. 3. 10. IL8'a In account the defendant pleaded unquex son-receiver, cO. ; and found, that the money was bailed to the defendant upon condition, that if he made assurance to the plaintiff of certain land, then he should retain the money to his own use ; and if not, that he should rebail, &c. : and found that he did not make the assurance, &c. wherefore judgment was given that [20 b] he should recover. And there it i itou. ai . n, M7. is said that debt lies in that case, but it seems that it is not law. ^ '"[^ 'g [7 {' .{' ^'h' And although this receipt was testified by bill, yet it seems that it f, i M_k 'i u. o, lib. shall not altar the nature of the account in a debt: for it is only òòò-"'ò - ò evidence, and should not estop the intestate from waging his law, as it seemed to him. (122) For it is as if a loase be made by indenture for a term of years rendering rent, although an action be usual upon such an indenture, yet the defendant may plead divers matters in fact, as a levy by distress or payment, for that the lease is the foundation of the action, and not the indenture ; for if the indenture were the ground, then could he not aver such an answer without deed, but the law is contrary. And in 1. H. 6. -n. i;, 9. il k. 4, so i . [7.] In account the defendant said, that for the receipt of the sum he made to the plaintiff a bill ; judgment if, &c. And adjudged no plea, because it is only evidence of the account, &c. Yet por- adventure if they were words obligatory to bind him to make an account of the said twenty pounds, or if he had not bestowed them according to the bailment, that then he acknowledged that he owed, or to pay, or that he was bound in the aforesaid twenty pounds, these words ought to charge him as debtor. (123) As the caae is in 42. [E. 3. 9. a.] that a man by bill receives ten pounds to make a faithful account of it, these words make him debtor, &c. And although the testator cannot wage his law, yet it is not good 10 Co. uk a. u h. 4, 61 ground to say that the administrator or executors shall be charged. ''^Vi'H/M^b^TR As if a man before auditors is found in...
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