Nutton and Crow
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1760 |
| Date | 01 January 1760 |
| Court | High Court |
English Reports Citation: 93 E.R. 274
IN THE KING'S BENCH AND CHANCERY
NUTTON AND CROW. 10 Mod. 283. Mr. Salkeld argued for the plaintiff in error. In order to clear the way of our objections, I must premise that the remittitur, * Antea, 80. GILB. CAS. 105. REPORTS IN THE KING'S BENCH, ETC. 275 which is entered in this cause upon the two first counts, [105] cannot help the plaintiff, because the defendant has demurred to the declaration, and thereby challenged the defects of it; and it was not in the plaintiff's power to help them afterwards, it must be taken as it stood when the defendant demurred. Our objections to the declaration stand thus : The first promise was made the 22d of January 1708, to the testator in his lifetime, the second made 23d January 1708, to the testator in his life-time, the third is a promise to the plaintiff's executor, upon an account between the plaintiff and defendant of money due to the testator, laid 5 May 1709, hereupon we offered that the actions were not joinable, the plaintiff being intitled to the first and second as executor in right of his testator, and to the third in his own right. But in this we are answered, and accordingly the Court inclined, that the last promise is laid by the plaintiff as executor, and that the accounting has not altered the nature of the duty, but it remains upon the former right, and therefore the actions are very properly joined. But upon this we say, that the plaintiff becomes liable to a worse objection, viz. that he has shewn no title to his action, for the letters testamentary which he has produced bear date 1 Sept. 1708, and Benjamin Nutton [106] the testator is alledged to be alive 23d January 1708, so that either these are not the letters testamentary of the same N.B. or else the will was proved in the testator's life-time, which equally over-throws the plaintiff's title. This is within the reason of the common case, if in debt upon a bond by B. N. dated 20th January, the defendant has craved oyer, and thereupon was set forth a bond of B. N. dated 20th February, and demurred, the plaintiff could not have recovered, but the law would understand, that the plaintiff has mistaken his bond, and yet in that case the identity of the bond is averred by prsediet as much as here, for it is profert hie in Curia scriptum prsed' & petit auditum scripti prasdicti. Bro. Montrans de Faits, &c. 82, administrator brought debt, and counted of an administration granted to him at A...
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