Horler v Carpenter
| Jurisdiction | England & Wales |
| Judgment Date | 10 February 1857 |
| Date | 10 February 1857 |
| Court | Court of Common Pleas |
English Reports Citation: 140 E.R. 332
IN THE COURT OF COMMON PLEAS, AND IN THE EXCHEQUER CHAMBER.
S. C. 26 L. J. C. P. 136; 3 Jur. N. S. 494; 5 W. R. 486. For subsequent proceedings see 3 C. B. N. S. 172.
[56] horler v. carpenter. Feb. 10, 1857. [S. C. 26 L. J. C. P. 136 ; 3 Jur. N. S. 494; 5 W. E. 486. For subsequent proceedings see 3 C. B. N. S. 172.] The declaration stated that the defendant, as executor of one J., was accustomed and liable to pay over under her will to one A. certain rents and moneys received by him under the will to the use of A., and that, in consideration that the plaintiff would advance moneys to A., the defendant promised to repay her any such sums as she might so advance, from and out of the first money which he (the defendant) should receive on account of A., to wit, out of the first moneys to be by him thereafter received on account of the aforesaid rents and moneys, as and when he should receive the same : Averment, that plaintiff afterwards advanced to A. moneys in the whole amounting to 581. 8s., and A. thereupon gave her an authority to receive the amount from the defendant; that the defendant afterwards received 201. on account of the said rents and moneys, and paid the same to the plaintiff, but afterwards, and before he received any more, purchased A.'s interest in the said rents and moneys, and took an assignment thereof, and thereby disabled himself from performing his contract with the plaintiff, and had ever since received the rents and moneys in his own right.-Plea, that, at the time of the purchase of A.'s interest, the defendant had no notice or knowledge that the plaintiff had advanced A. more than the 201. so paid by him to the plaintiff, or that A. had given the plaintiff an authority to receive any further sum :-Held, that the plea was a sufficient answer to the declaration; for, that the defendant's promise did not attach until the authority was given, and A., by parting with his interest, deprived himself of the power to give such authority. The first count of the declaration stated that the defendant, before and at the time of the making of the promise thereinafter in that count mentioned, was the executor of the last will and testament of one Mrs. Jenkins, deceased, and, as such executor, under and by virtue of the provisions of the said will, had been and was accustomed (a)1 Jones v. Ryde, 5 Taunt. 488, 1 Marsh. 157. (b) Bridge v. Wain, 1 Stark. N. P. C. 504. (a)2 The defendants afterwards brought a writ of error returnable in parliament: and, upon application to a judge at Chambers, an order was made for payment into court of the amount of the damages and costs, and for its payment out to the plaintiff upon his giving security to the satisfaction of the master for the restitution of the money in the event of the judgment being reversed by the House of Lords. [No appeal to the House of Lords is reported.-ed. E. B.] 2 C. B. (N. S.) 57. HORLER V. CARPENTER 333 and liable to pay over to one Thomas x\dams certain rents and moneys received and to be received by the defendant under the said will for the use and behoof of the said Thomas Adams; and thereupon, in consideration that the plaintiff would lend and advance to the said Thomas Adams moneys of her the plaintiff, he the defendant promised the plaintiff, upon the said Thomas Adams giving the plaintiff an authority to receive the amount from the defendant, to repay to the plaintiff any such sums as she the plaintiff might so lend and advance, from and out of the first money which he the defendant should receive on account of the said Thomas Adams, to wit, from and out of the first moneys to be by him thereafter received on account of the aforesaid [57] rents and moneys, as and when he should receive the same, and to hold himself responsible to the plaintiff for the same: Averment, that the plaintiff, confiding in the said promise and undertaking of the defendant, did afterwards lend and advance to the said Thomas Adams divers large sums of money, in the whole amounting, to wit, to 581. 8s.; and the said Thomas Adams did thereupon give to the plaintiff an authority to receive the said amount from the defendant, who then had due notice of the premises : and the defendant afterwards received, on account of the said rents and moneys, 201., and paid the same to the plaintiff; but afterwards, and before he received any further portion of the said rents and moneys, the defendant purchased of the said Thomas Adams all his interest of and in the said rents and moneys, and took an assignment of the same from the said Thomas Adams, and thereby disabled himself from performing his said contract with the plaintiff according to the said terms thereof, and had ever since received as they became due the said rents and moneys in his own right, and the plaintiff had never yet been paid the residue of the said sum of...
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