Jenkins & Ux. v Plume
| 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. 184
COURTS OF KING'S BENCH, CHANCERY, COMMON PLEAS AND EXCHEQUER.
Hill. 2 Ann. B. R.
6. jenkins & Ux. versus plume. [Hill. 2 Ann. B. R.] Mod. Cases 91, 181. Husband and wife declare upon an indebitat. assumpsit to them as executors, on a cause arising after testator's death, upon a nonsuit they shall pay costs. 4 Mod. 244. 2 Cro. 361, 229. 2 Lev. 189. 3 Lev. 60. Hut. 78. Latch, 220. 1 Vent. 109. 2 Lev. 165. 2 Jo. 47. 1 Vent. 92. Yelv. 168. 3 Leon. 152. 3 D. 376, p. 26, S. C. 3 Salk. 105. Holt 313. Rep. A. Q. 174. Debtor pays testator's debt to A. with executor's consent, it is assets ; without his consent, it is not assets ; unless he brings an action and recovers, and then it is assets before execution. Post, 314, tit. Executor. Hob. 80, 283, 36. Indebitatus assumpsit by husband and wife executors, who declared quod cum the defendant was indebted to them in 201., as executors of the last will and testament of J. S., for money had and received to their use as executors, he promised to pay, &c. To this nan assumpsit was pleaded, and the plaintiffs were nonsuited at the trial. And now the question was, whether they should pay costs upon the statute 23 H. 8, cap. 15? Et per Cur. The plaintiff shall pay coats, for the receipt being since the death of the testator, if it was by the consent of the executor, it is the receipt of the executor. On the other side, if it was without his consent, yet now the bringing this action is a consent. As to the naming themselves executors, it is only to deduce their right, and set it forth ab origine; yet nevertheless the cause of action arises entirely in his time, and since the death of the testator. It is only by construction that an executor is out of the Statute of 23 H. 8, and the reason is, because he is not privy to the original cause of action, but in this case he is (a). If the defendant received this money by the consent or appointment of the plaintiff, it was assets in his 1 SALKELD, 208. DAMAGES 185 hands immediately; if without his consent, yet the bringing of the action is such a consent, that, upon judgment obtained, it shall be assets immediately without execution ; and yet if an executor brings an action and recovers judgment, the money recovered is not assets till levied by execution; but in the principal case it is assets immediately; and the reason is, because it is recovered against a person that never wag indebted to the testator, and the...
To continue reading
Request your trial
-
Ven v Phillips
...E.R. 185" class="content__heading content__heading--depth1"> English Reports Citation: 91 E.R. 185 COURTS OF KING'S BENCH, CHANCERY, COMMON PLEAS AND Pas. 2 Ann. B. R. 7. ven versus phillips. [Pas. 2 Ann. B. R.] In trespais for taking, driving, and wounding his sheep, the plaintiff shall ha......