CORYTON v. Was given for the defendant, because he intended to bring a new action and amend those faults. LITHEBYE. It is not neces Note;-an exception was taken that it was not averred that sary to state that the mills were ancient mills, but the court thought it was good the mills were ancient mills. enough without such an averment.. 477. Smith v. Barrow. It seems to be as much a new contract as if a promissory note, or a bond, had been given to him as executor, in which case it is held that the executor cannot join a count on such note or bond made to him as executor to a count on a promise made, or a debt due to the testator. 10 Mod. 316. Betts v. Mitchell. 3 Bos. & Pull. 7. Hosier v. Lord Arundel. For the same reason it should seem, that an executor cannot join an insimul computasset for money due from the defendant to him as executor, to a count on a promise made to the testator; the executor on such a count being liable to costs. 1 Ld. Raym. 437.; for the old notion that the money recovered will be assets, and therefore the executor is not subject to costs, which was the ground of the decision in Sir T. Jones, 47. Bull v. Palmer. 2 Lev. 165. S. C. seems to be now exploded. 7 Term. Rep. 358, 359. Bollard v. Spencer; but perhaps an insimul computasset with the plaintiff as exccutor for money due to the testator, may be joined to a count on a promise made to the testator; for the accounting with the executor does not give a new duty, but only ascertains that which was due before, [e] So in 1 T. R. 487. King v. Thom, it was held that the plaintiffs might sue as executors upon a bill of exchange indorsed to them as executors for a debt due to their testators, for the sum recovered would be assets. For the same reason, in 5 Price, 412. Partridge v. Court, it was held that an administrator might join counts on promises to the intestate, with a count on a promissory and therefore the duty to the testator is not altered thereby. See also ante, 47k. Since the former part of this note was written, the subject of joining counts by an executor has been much considered; and it is now held that if the money recovered on each of the counts will be assets according to the rule in the before-mentioned case of Bull v. Palmer, the counts may be joined in the same declaration. And therefore in the case of Ord v. Fenwick, 3 East, 104., it was held that a count in assumpsit to the plaintiff as executrix for money paid by her to the defendant's use, may be joined with another count on promises made to the testator. And so is the case of Foxwist v. Tremaine, post, 207. And in Cowell v. Watts, 6 East, 405., the court held that a count, upon a promise to the plaintiff as administratrix for goods sold and delivered by her after the death of the intestate, may be joined with a count upon an account stated with her as administratrix, assigning as a reason that whenever the money when recovered would be assets the counts may be joined. [e] But it must be stated in the count that the duty accrued to the note indorsed to him as administrator; which judgment was affirmed on error. 7 Price, 591. Court v. Partidge. And in case of the death of such administrator, an action on the note will lie at the suit of the administrator de bonis non, even although the note were indorsed to the first administrator in blank; provided it were indorsed to him for a debt due to his intestate; for plaintiff in his representative capacity of executor. It is not enough to say that it accrued to him executor, or being executor; it must be averred that it accrued to him as executor. And therefore where a count, upon an account stated with the plaintiff executrix, (not saying as executrix,) was joined with a count on a promise to the testator, it was held in error after judgment by nil dicit and a writ of inquiry and final judgment that those two counts could not be joined. 5 East, 150. Henshall v. Roberts. So a plaintiff shall not have an action against another, to charge him as executor, and also in his own right; for the judgment in the one case is de bonis testatoris, and in the other de bonis propriis. Hob. 88. Herrenden v. Palmer. 2 Lev. 228. Hall v. Huffam. Therefore a count for money had and received by the defendant as executor for the plaintiff's use, or for money lent him as such, or on an insimul сотриtasset of money due from him as such, cannot be joined to a count on a promise made by thet estator. [f] And the blank indorsement may be filled up by the administrator de bonis non. Catherwood v. Chabaud, 1 Barn. & Cress. 150. The rule that counts may be joined, whereon the sum recovered on them would be assets, is fully confirmed in 1 Taunt. 322. Thomson v. Stent. 6 Taunt.453. Powley v. Newton. 2 Marsh, 147. S. C. Upon a similar principle it has been held that a count by the assignee of a bankrupt for money lent by him as assignee is good, and may be joined with a count for money had and received to his use as assignee. 5 M. & S. 294. Richardson v. Griffin. [f] But in Powell v. Graham, 7 Taunt. 580. 1 B. Moore, 305. S. C., it was held that a count on an insimul computasset of money due from the defendant such misjoinder of action either by or against an executor, is a defect in substance, and therefore bad on a general demurrer, or in arrest of judgment, or on error. 4 Term. Rep. 347. Jennings v. Newman. 1 H. Black. 108. Rose v. Bowler. 2 Bos. & Pull. 424. Brigden v. Parkes. See the reason thereof postea, 210. 210 a. in the note. But a count on an account stated with an executor for money due from the testator, may be joined to a count on a promise made by the testator. 1 H. Black. 102. Secar v. Atkinson [g]; this being the common mode of declaring against executors, to save the statute of limitations. So a man cannot join trespass, and trespass on the case in the same action, for they are two distinct things and of different natures, and the judgments are different; for in trespass the judgment is quod capiatur, and in trespass on the case, quod sit in misericordia. 1 Ld. Raym. 273, 274. Courtney v. Collet. [h] The result of all these cases seems to be, that wherever the same plea may be pleaded, and the same judgment given in all the counts of the declara as executor, may be joined with counts on promises by the testator; for that on such a count the judgment will be only de bonis testatoris. [g] Forrest. 98. Ellis v. Bowen, S.P. [h] See ante, 117 c. note [c]. But trespass quare clausum fregit, and trespass per quod consortium, or servitium amisit, may be joined; although the latter action being for a consequential injury, seems more in the nature of case than trespass. 2 N. R. 476. Woodward v. Walton. 2 M. & S. 436. Ditcham v. Bond. Notwithstanding the cases cited in 6 East, 387. Macfadren v. Olivant. See Tidd's Pract. 5. where this matter is discussed by the learned author. tion; or whenever the counts are of the same nature, and the same judgment is given on them all, though the pleas be different, as in the case of debt upon bond and on a mutuatus already mentioned, they may well be joined. (3) The same objection was taken in Hob. 189. Harbin v. Green. Moor, 887. S. C. [and recognized in Willes's Rep. 657. Drake v. Wiglesworth,] where a custom for the inhabitants to grind all their grain whatsoever by them spent or sold in their said messuages at the plaintiff's mills, and not elsewhere, was held to be void: for by that custom, if a man bought corn he could not sell it again in corn in his house, for he must first grind it at these mills; and the breach was assigned as well in corn sold as spent ; and Lord Hobart was of opinion, that if the plaintiff had assigned it only in corn spent, it would not have served. See Doug. 221. Cort v. Berbeck. The pleading in this case should have been, "all the corn and grain after "the grinding thereof, or ground, and spent, &c." But it is a good custom that all the householders and occupiers of dwelling-houses in the parish of A., shall grind at the plaintiff's mill all their corn which shall be used by them ground within the parish, although the inhabitants are not tenants. 1 Roll. Abr. 559. pl. 4. Higges v. Gardener. Willes's Rep. 654. Drake v. Wiglesworth. Case 21. Chandler versus Vilett. Hil. 21 & 22 Car. II. Regis. Rot. 1297. WILTSHIRE, to wit; Be it remembered that heretofore, to wit, in the term of St. Michael last past, before our lord the king at Westminster came Thomas Chandler, who is within the age of twenty-one years, by John Ridley his guardian specially admitted by the court here, and brought here into the court of our said lord the king then there his certain bill against Richard Vilett gent in the custody of the marshal, &c. of a plea of trespass upon the case, which said bill follows in these words, to wit: Wiltshire, to wit, Thomas Chandler, who is within the age of twenty-one years, by John Ridley his guardian specially admitted by the court here (1), com (1) If an infant sues or defends by his guardian, the guardian must have a warrant, though if he sues by his prochein amy or next friend, the prochein amy need not; but both the guardian and prochein amy must be admitted by the court. F. N. B. 63. I. 7th edit. 2 Inst. 261. 3 Mod. 236. Fitzgerald v. Villiers. Cro. Car. 86. Young v. Young. See the form of the rule or order for the admission. Tidd's Pract. Forms, 6, 7, 8. 2 Sell. Prac. 66, 67. Imp. C. P. 625-628. 4th edit. And if the infant sues by guardian or prochein amy, without saying in the declaration “by "the court here specially admitted,” it is error. 1 Lev. 224. Combers v. Watton. But the insertion of those words in the plains of Richard Vilett gent. being in the custody of the CHANDLER marshal of the marshalsea of our lord the king before the . VILETT. king himself, for that whereas the said Richard, on the 1st day of May in the 17th year of the reign of our lord Charles the second now king of England, &c. at Highworth in the said county, was indebted to the said Thomas in 50l. of good Indebitatus asand lawful money of England, for money by the said Richard sumpsit, for before that time had and received to the use of the said received. Thomas, and being so indebted, he the said Richard in consideration thereof undertook, and then and there faithfully [118]. promised the said Thomas, that he the said Richard would well and faithfully pay and satisfy the said 50%. to the said declaration is holden to be sufficient, money had and 2 Inst. 261. 2 Str. 784. Frescobaldi v. Kinaston. The rule or order for the admission of a prochein amy should be obtained before declaration, and a copy thereof annexed to it, otherwise the defendant is not compeйable to plead. Sty. Pr. Reg. 264. And the attorney for the plaintiff, if required, must give notice to the defendant's attorney, of the place of abode of the prochein amy. 1 Wils. 246. Tomlin v. Brookes. In like manner the rule or order for the admission of a guardian, should be obtained be- [a] See post, 212. notes. may 2d count, also for money had and received. Breach. CHANDLER Thomas. And whereas also the said Richard, afterwards to wit, V. VILETT. on the said 1st day of May in the 17th year aforesaid, at Highworth aforesaid in the county aforesaid, was indebted to the said Thomas in 127. of like lawful money, for other money by the said Richard before that time likewise had and received to the use of the said Thomas, and being so indebted he the said Richard in consideration thereof undertook, and then and there faithfully promised the said Thomas, that he the said Richard would well and faithfully pay and satisfy the said 127. to the said Thomas. (2) Yet the said Richard, not regarding his said several promises and undertakings, but contriving and fraudulently intending craftily and subtilely to deceive and defraud the said Thomas in this behalf, has not paid the several sums, amounting in the whole to 627., to the said Thomas, nor has he in any wise satisfied him for the same (although to do this he the said Richard afterwards, to wit, on the 1st day of August in the 21st year of the reign of our said lord the now king, at Highworth aforesaid in the county aforesaid, was requested by the said Thomas (3), but to pay him the same has hitherto altogether refused and still refuses, to the damage of the said Thomas of 801., and therefore he brings suit, &c. (2) According to the present mode of declaring, these two sums of 50l. and 121. would be included in one count, stating that the defendant was indebted to the plaintiff in a certain sum of money more than sufficient to comprehend these sums; as in this case, "that the said "(defendant) on, &c. at, &c. was in"debted to the said (plaintiff) in 100l. "(for instance) of good and lawful, &c. "for so much money by the said (de"fendant) before that time had and re"ceived to the use of the said (plain"tiff), and being so indebted, &c." [6] A count, stating that the defendant had and received money to the use of the plaintiff, to be paid to the plaintiff on request, but that not regarding his duty, he converted the money to his own use, is bad on demurrer, as it can and the plaintiff upon this count would now recover these two sums of 50%. and 121., if he proved that the defendant had at different times received them for his use. [6] (3) As this declaration is for a preceding debt, or duty, there is no necessity to lay a time and place of request as is done here, but the general allegation of," although often requested," is holden to be sufficient; for the bringing of the action is a sufficient request. 1 Saund. 33. Birks v. Trippet. not be considered as a count in trover, but is an attempt to convert an action of assumpsit into an action of tort. 5 B. & A. 652. Orton v. Butler. 1 Dowl. & Ryl. 282. S. C. |