Corner v Shew, Executor of C. Lewis, Deceased
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1838 |
| Date | 01 January 1838 |
| Court | Exchequer |
English Reports Citation: 150 E.R. 1179
EXCH. OF PLEAS.
S. C. 6 Dowl. P. C. 584; 1 H. & H. 65; 7 L. J. Ex. 105. See Further, 4 M. & W. 163.
350] corner v. shew, Executor of C. Lewis, Deceased. Exch. of Pleas. 1838. -Counts for goods sold to and work and labour done for the defendant, as executor, cannot be joined with a count for money found to be due on an account stated with the defendant, as executor.-WThere work is contracted for by a testator, who dies before the contract is completed, but it is completed afterwards ; semble, that in an action against his executor, the plaintiff should declare specially, stating those facts. [S. C. 6 Dowl. P. C. 584; 1 H. & H. 65; 7 L. J. Ex. 105. See further, 4 M. & W. 163.] Assurapsit. The declaration stated that the defendant as executor, &c. of Christiana Lewis, deceased, on &c., was indebted to the plaintiff in 201. for goods sold and delivered I by the plajntiff to the defendant as executor as aforesaid at his request: and in 201. i for work (lone, and materials for the same used and provided by the plaintiff for the i defendant^ executor as aforesaid at his request: and in 201. for money paid by the plaintiff for the use of the defendant as executor as aforesaid at his request: and in i 201. for money found to be due from the defendant as executor as aforesaid to the plaintiff, on an account stated between them : and that the defendant, as executor as LL80 CORNER (.SHEW 3M.&W.351. aforesaid, afterwards and after the death of the said C. Lewis, and before the commencement of this suit, to wit, on &o., promised .fee. Pleas, first, lion assumpsit; secondly, ne unques executor. The cause was tried before the Judge of the Sheriff's Court in London, when the plaintiff'recovered a verdict for 141. 11s. 6d. Channel, in Michaelmas Term last, moved to arrest the judgment, Referring to the opinions intimated by the Judges in Axhby v. Ashby (1 B. & C. 444 ; 1 Man. & R. 180), he sfaited that he should raise no objection to the joinder of the third with the last count; but he submitted that, notwithstanding the words "as executor "in the first and second counts, those counts charged the defendant in his personal character, and could not be joined with the last count, which clearly charged the defendant in his representative character. The case of Rogm v. Price (3 Y. & J. 28) might be supposed to have decided [351] that a party could be liable as executor for work done at his request, for instance, th furnishing, at the request of the executor, the funeral of the testator; but he contended that that case only established that the party sued, being executor, arid having assets, was, under the particular circumstances, liable; and if considered as an authority for the position that he was liable as executor, and might be sued in his representative character, that it required further consideration. The Court having granted a rule. Platt shewed cause. The Court will not arrest the judgment if it can imagine any state of facts in which an executor could be liable on each count: Roue v. Bowler (1 H. Bl. 108), Ellis v. Sown (Forrest, 98), Powell v...
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