Jenkins & Ux' v Plombe
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1795 |
| Date | 01 January 1795 |
| Court | Court of the King's Bench |
English Reports Citation: 91 E.R. 719
COURTS OF KING'S BENCH, CHANCERY, COMMON PLEAS AND EXCHEQUER.
Hill. 2 Annæ, B. R.
3. jenkins & Ux' versus plombe. [Hill. 2 Annie, B. R.] Mod. Cases 91, 181. 1 Salk. 206. When husband and wife must join in the action. Debt by husband and wife as executors of W. R., in which they declared, that the defendant was indebted to them as executors for so much money received by the defendant 720 COSTS 3 SALKBU). 10. for them as executors; upon non assumpsit pleaded, the cause came to be tried, and the plaintiffs were nonsuited; and in this case several points were resolved by Holt, Ch. Just, to which the Court agreed. 1. Where a man marries a woman, who is an executrix, and if before the marriage a stranger receives money due to the testator, and he is sued for it, the husband and wife must join in the action; but where the money is received after the marriage, the husband may sue alone. 2. If the money was received after the marriage, and by order or consent of the husband, it is the same thing as if the husband had received it himself; it became assets in his hands, and the original debtor of the testator is discharged ; and if it is paid by his order or appointment to a third person, it is a devastavit in the executors, because the original debt to the testator is paid off, and here is a new debtor to the executor, who owed nothing to the testator. [106] 3. In the principal case, if the defendant had received this money, without the order or consent of the husband, in such case he, by bringing this action, had affirmed the receipt, and that it was his election, and that he consented to make the defendant his debtor, so that the original debtor to the testator was thereby discharged. 4. That though the very bringing an action against the defendant shews, that the plaintiffs consented to make him their debtor, & omnis ratihabitio retntrahitur, &c. so as the plaintiffs might bring this action in their own name, yet the bare bringing the action did not make it assets in their hands till judgment was obtained ; and therefore, if the plaintiffs fail in their action (as they did in this case, being nonsuit,) the matter is set at large again, and the plaintiff may sue the original debtor of the testator, if he will. 5. That executors are not excused from paying costs by the letter of the statute, but by a very favourable construction thereof; as being presumed to have no know ledge of the affairs of...
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