Gleadow and Others, Executors of Gleadow, v Atkin and Another, Executors of Atkin
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1833 |
| Date | 01 January 1833 |
| Court | Exchequer |
English Reports Citation: 149 E.R. 231
IN THE COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER
S. C. 2 Tyr. 689; 1 L. J. Ex. 223.
gleadow and others, Executors of Gleadow, v. atkin and anotubk, Executors of Atkin. Exch. of Pleas. 1832.-Debt, on a common money bond, by executor of obligee against executor of obligor. Plea -that the money mentioned in the condition was part of the personal estate of A. B., deceased, by whom it had been bequeathed to the testator of the plaintiff and the testator of the defendant, and the survivor of them, and the executors and administrators of such survivor, upon trust to put and place the same out at interest, upon such real or other1 sufficient security as they might approve of, and to pay the interest, &c., &o. ; that the testator of the plaintiff' died, leaving the testator of the defendant surviving; whereupon the said personal estate of A. B. vested in the defendant's testator, to 232 (JLEADOW V. A.TK.IN 2 C. & J. M9. be by him and his executors and administrators applied according to the trusts of the will of A. B.:-Held, on general demurrer, that the plea was bad. [S. C. 2 Tyr. 689 ; 1 L. J. Ex. 223.] Debt on bond, entered into by Atkin, the testator, and one Boyle, conditioned for the payment of 2501. to Gleadow, the testator. [549] The defendants pleaded, amongst others, the following plea-Actio non, &c.; because they say that, heretofore, to wit, on the 14th day of August, liSOO, at the county of York aforesaid, one Cuthbert Thew made his last will and testament in writing, and thereby gave and bequeathed unto the said fiobert Gleadow, since deceased, and the said John Atkin, and the survivor of them, and the executors and administratora of such survivor, all and singular his stock and implements in trade, the lease of his house, his ready money, bills, bonds, notes, mortgages, and other securities for money, debts clue and owing to him, and all other his personal estate and effects whatsoever and wheresoever (except his household furniture to his wife for life, and subject to the payment to her of the sum of 1601.); upon trust (amongst other things) that they the said Robert Gleadow (since deceased) and John Atkin (since deceased), or the survivor of them, or the executors or administrators of such survivor, should forthwith, or as soon as conveniently might be after his decease, sell and dispose of such part of his personality as was saleable, and collect and receive all his debts owing to him, and the money arising from such sale, with the debts to be received, the amount of monies owing to him on securities, with the ready money he might die possessed of, he the said Cuthbert Thew willed and directed that his said trustees, or the survivor of them, or the executors or administrators of such survivor, should put and place out at interest, on real or other sufficient securities, as they should approve of, and pay the interest thereof, as the same should accrue and be received by them, unto his said wife or her assigns, during her natural life. And the said Cuthbert Thew by his said will appointed the said fiobert Gleadow (since deceased), and the said John Atkin (since deceased), executors thereof. And the said defendants, executors as aforesaid, further say, that the said Cuthbert Thew, afterwards, to wit, on the 1st day of Oc-[550]-tober in the year aforesaid, at the county aforesaid, died without altering or revoking his said will; and that thereupon the said Robert Gleadow (since deceased) and the said John Atkin (since deceased) took upon themselves the execution of the said trusts in the said will mentioned; and that the said wife of the said Cuthbert Thew is still in full life, to wit, at the county aforesaid. And the said defendants, executors as aforesaid, further say, that the said sum of money in the said condition of the said writing obligatory mentioned, was part of the personal estate of the said Cuthbert Thew, and as aforesaid bequeathed to the said Robert Gleadow (since deceased) and the said John Atkin (since deceased), and the survivor of them, and the executors or administrators of such survivor, to be by them applied according to the trusts of the said will, and was not the proper money of the said Robert Gleadow (since deceased); arid that the said writing obligatory was given to secure the payment to the said Robert Gleadow (since deceased), as such trustee as aforesaid of the said money and interest, the same being money to be applied according to the trust specified in the said will of the said Cuthbert Thew. And the aaid defendants further say, that the said Robert Gleadow in the said writing obligatory mentioned, afterwards, to wit, on the 17th day of September, 182G, at the county aforesaid, died, leaving the said John Atkin (since deceased) him surviving; whereupon all and singular the said personal estate by the said Cuthbert Thew bequeathed as aforesaid to the said Robert Gleadow (since deceased) arid John Atkin (since deceased), and the survivor of them, and the executors and administrators of such survivor, became and was vested in the said .John Atkin (since deceased), to be by him and his executors and administrators applied according to the said trusts of the said will of the said Cuthbert Thew ; and this, &c., wherefore, &c. General demurrer and joinder. [551] Alexander, in support of the demurrer. The plea affords no answer to the action. It discloses matters of mere parol ; and they cannot vary a, claim under seal. A defeasance must be by matter as high as the instrument to he defeated. Therefore, where, in debt on bond, conditioned for payment of 201. on a certain day, the defendant pleaded that, before the day, the plaintiff, on account of a trespass committed by his cattle on the defendant's lands, gave him a further day of payment, the 2C- &J. W2. GLEADOW V. ATKIN 233 plea was held bad on demurrer, because an agreement by parol cannot dispense with a deed. Hayford v. Andrews (Cm. Eliz. 697). That rule is fixed by a long series of authorities, and cannot now be shaken. Blemerhasset v. Pierso-n (3 Lev. 234); Rogers v. Payne (2 Wils. 376) Hoe v. Harrison (2 T. E. 425); Mease v. Meate (Cowp. 47) ; Littler v. Holland (3 T. fi. 590); Davey v. Preitdergmss (5 B. & Aid. 187). There is no objection to the suit on the ground of the co-executorship of the parties. The bond, in terms, treats them as independent parties, and, quoad the right of action which it gives, they lose the character of co-executors. Foster v. Allanson, (2 T. E. 479). But it will be argued, on the part of the defendants, that the plea is calculated to prevent circuity of action, and therefore is an answer to the declaration. The cases upon this subject are collected in 2 VVms. Saund. 149 a., h. 2. They will, however, on examination, be found inapplicable. The true principle to be applied to the present question is found in Moore, 23, pi. 80; viz. that a cause of action against a plaintiff will be no bar to an action by him for avoiding circuity of action, when the recovery in both actions is not equal. Now, in this case, the parties are riot on an equal footing. By allowing his [552] co-executor to have the testator's money on his mere persona,! security, Gleadow became liable as for a clevastavit; Wilkes v. Steward (Coop. Rep. fi ; 2 Cox, Eep. 1); Langstun v. Ullioant (Coop. Eep. 33); and, upon Gleaclow's death, that liability devolved upon his executors, the plaintiffs. 4 & 5 W. & M. c. 24, s. 12. They have, consequently, a right to recover the amount of the bond debt, in order to insure its due application, pursuant to Thew's will, and so protect themselves against the consequences of their testator's rlevastavit. Until the trust is duly performed, they are liable to Thew's widow, and this bond is their only indemnity. But the defendants are very differently circumstanced. Their testator has actually had the money in question ; and on what principle can it be argued that he is now also entitled to the security 1 The bond could not, at law, be made available in the hands of the defendants, for they cannot sue themselves. Cheetkam v. Ward (1 B. & P. 630), Thew's estate would, therefore, bo deprived of a better security, if the bond could not be enforced by the plaintiffs. In all the cases upon the doctrine of circuity, will be found one or other of the following ingredients-either there were parol liabilities and parol defences; or covenants by deed, defeating liabilities by deed; or between parties in the same right, and without auy liabilities to third persons; or where pmtual rights of action were existing. But the present case is without any one of those ingredients. The liability is by deed; there is no covenant by deed defeating it; the plaintiffs are liable over to a third person ; and the defendants have no right pf action against the plaintiffs. If the doctrine of circuity of action do not apply to this case, toe plea is clearly insufficient^ and the plaintiffs are entitled to judgment. [553] Cress well, contra. The argument for the plaintiffs proceeds on the assumption that the estate of the defendants' testator is insufficient to discharge the bond debt. There is no suggestion to that effect upon this record. If the money had been lent by Atkin in Gleadow's life-time, and Atkin had left no money of his own wherewith to satisfy the debt, it might have perhaps rendered the plaintiff's testator liable; but^ unless there were a devastuvit in his lifetime, his executors are not liable. [Bayley, B. Is not the leuding to a person who has no right to borrow, n misapplication'!] No liability would arise therefrom until a loss happened. But, suppose that the plaintiffs were to recover in this action, the defendants would have an immediate right to recover this money back from the plaintiffs. They might immediately bring an action for so much money had and received to their use...
To continue reading
Request your trial
-
Mulhern v Clery
...(2) Birt v. Barlow, 1 Doug. 170;R. v. North Petherton, 5 B. & C. 508. (3) Law of Evidence (3rd Ed.), I, p. 243. (4) 8 B. & C. 813. (5) 1 Cr. & M. 410. (6) 5 App. Cas. 623, at p. (1) Comm. III, c. 23, p. 367. (2) At p. 68. (1) Gib. Cod. 204. (2) Bullingbrooke, Eccl. Law, 1770, vol. 1, p. 276......
-
Lalor v Lalor
...v. Overseers of BirminghamENR 1 B. & S. 763. Taylor v. Witham 3 Ch. Div. 605. Davies v. HumphreysENR 6 M. & W. 153. Gleadow v. AtkinENR 1 Cr. & M. 410. Parol evidence Subsequent declarations by grantor in derogation of grant Admissions against pecuniary interest. 678 LAW REPORTS (IRELAND). ......
-
Goodtitle on the Demise of Baker and Another v Milburn
...mortgagor that the mortgage was a continuing mortgage, so aa to rebut any presumption of payment from the lapse of time : Ghadow v. Atkin (1C. & M. 410). It contains an admission by Payne, under whom the defendant claims, against his interest; and is therefore evidence against him. It is sa......
-
Davies v Evan Humphreys
...his death. If he had given time to Evan Humphreys after that, ha would have lost his remedy against the two others. In Oleadow t. Atltin (1 Cr. & M. 410), it was held that an indorsement upon a bond in the handwriting of; the obligee, which appeared to have been made at or about the time wh......