1805. COWELL and Wife, Administra trix, &c. against WATTS. sum recovered will be assets, the costs must necessarily be assets also.] No answer being given, Lord ELLENBOROUGH, C. J. I wish that the rule which was long ago laid down in Bull v. Palmer (a) had been) abided by, That where the money when recovered would be assets, the executor may declare for it in his representative character. The same doctrine was again laid down in Mason v. Jackson (b); and the same principle has been recognized in modern times in King and Others v. Thom (c); and in Cokerill v. Kynaston (d), by Mr. Justice Buller. In [410] King v. Thom, the plaintiffs declared as executors upon a bill of exchange indorsed to themselves in that character; and it was bolden well by the Court: and that such a count might be joined with other counts for money had and received by the defendant to the use of the plaintiffs as executors, and ou an account stated with them as such; and yet no doubt the cause of action in the first count arose in the time of the executors; and the very reason assigned in Rogers v. Cook, as reported in Salkeld (which is not mentioned in the other reports (e) of the same case) why a count as executor cannot be joined with one in the plaintiff's own right, namely, Because the costs to be recovered being entire, cannot be severed, shews that the principle of those cases is right; for where the costs when recovered will belong to the same fund which is to receive or pay the damages, there being no need of severance, the reason of the thing would warrant the joining of the counts. Lord C. J. Lee, indeed, in the case of Hooker v. Quilter (f) objects to Salkeld's report of Rogers v. Cook as coming on upon demurrer; for "That the defendant having pleaded a frivolous plea, when the Court saw the record they abated the writ, because there appeared two incompatible demands (in that, however, he could not have been accurately reported): and he says, that the true reason was on account of the damages which were entire; and that the Court could not say what damages the plaintiff was to have as administrator, and what in proprio (e) (4) 2 Lev. 165. (c) Term Rep. 487. (b) 3 Lev. 60. Show. 366, and Carth. 235. It appears by all the reports of the case, that the plaintiff declared in the count on the insimul computasset simply in his own name, not saying as administrator. (f) 1 Wils. 172. The report in Carthew states it to have been on demur◄ fer to the plea. jure," 1805. COWELL and Wife Administra trix, &c. against WATTS. * jure." It certainly is the more convenient rule to say, that counts may be joined where the fund out of which the damages are to come, or to which they are to be applied, is the same; but it must be admitted that the determinations have not been uniform to that extent; but the labour has often been to shew that the plaintiff was bound to sue in the same character in all the counts. Now, it cannot be said [411] that the administratrix sold the goods after the death of the intestate in her representative character, though the promise may have been made to her in that character. All the counts, indeed, are founded upon acts done with the administratrix herself after the death of her intestate, and the promises must have been made to herself, though they may have been made in relation to the character with which she was invested. The last count states that the money was due and owing from the defendant to the said Mathew and Jane," &c.; and in each count there is a specific promise alleged to have been made to them, though with reference to the wife's representative character. In each count, therefore, the promise may be considered as made to her in the same character: it is made to her personally, but connected with her character as administratrix. Therefore, there being the same consideration inducing to all the proLises, and the promises being to the same persons in the me characters, I see no reason why they may not be joined in the same declaration. Whether the plaintiffs might have sued in their own characters is another ques tion, affecting the right to costs, which may arise here afer, and upon which it is unnecessary to say any thing at present. GROSE, J. The best line to adopt, in determining whe ther the counts may be joined, is to consider whether the sum when recovered would be assets. Now here the promises are all laid to the wife as administratrix, and all the [412] damages will be recovered in her représentative capacity; the counts may, therefore, be joined. LAWRENCE, J.I think these counts may be joined. The reason why promises made to a plaintiff in his own right cannot be joined with promises to him in his representative character is, because the funds to which the money and costs to be recovered are to be applied, or out of which the Costs 1805. COWELL and Wife trix, &c. against WATTS. eosts are to be paid, are different. In one of the cases the reason given is, because the costs are entire; in another case, because the damages are entire: but neither of those reasons Administra- apply here; and where the sum recovered and the costs must be applied to the estate of the intestate, I think the counts may be joined. There has certainly been a contrariety of decisions on this subject; but it appears to me that those cases in which the rule has been laid down, that counts may be joined whenever the money recovered under them would be assets, afford the best guide to us. The question of costs is a matter of very different consideration, on which many of the contrary decisions have proceeded. The reason why an executor suing in his representative character shall not be liable to costs if he fail is, because he is supposed not to be cognizant of the contracts made by his testator; but as he must be cognizant of all contracts made by himself personally, though in his representative character, and as he might declare upon them in his own right, there is reason why he should not be exempt from costs in case he fail in his action. LE BLANC, J. The plain and intelligible line is, that the counts may be joined whenever the money when recovered [418] would be assets. Then as the money to be recovered here in all the counts would belong to the plaintiffs in right of the representative character of the wife, there is no misjoin. der of them; and I see no reason why the promises in the two first counts may not be laid as made to the wife as admi nistratrix consistent with the truth of the case. As suppose the defendant had contracted in writing, that in considera tion that the plaintiffs would sell to him certain goods which had belonged to the intestate, he promised that he would pay her for them as administratrix; and so with respect to the last count, the defendant may have accounted with the plaintiffs, or with the auctioneer for the price of the same goods; and upon such accounting, knowing in what right the goods were sold, he may have promised to pay her for them as administratrix. Therefore, where all the promises are laid to have been made to her in her representative character, and where the damages and costs when recovered are to go to her in the course of administration, I think these counts may be joined, Judgment for the plaintiffs. TOWER 1805. TOWER against CAMERON and KENNEDY. * Tuesday, ruptcy and the without aver mencement of defendant could fence under only given by the statute in case any bankrupt who has conformed to afterwards he THE plaintiff declared as payee of a promissory note, dated The general 27th of February, 1798, against the defendants as draw- plea of bankers, whereby they promised to pay, two months after de- certificate given by st. 5 Geo. 2, mand, to the order of the plaintiff 1607.; and averred, that c. 30, s. 7, may she made no order for payment to any other person, and be pleaded, demanded payment on the 19th of April, 1800; in consider- ring that the ation whereof, &c. the defendants promised to pay, &c. happened be bankruptcy The declaration also contained the common money counts. fore the comTo which Kennedy pleaded, in addition to the general issue, the suit; but if that the plaintiff ought not to have or maintain her aforesaid it appeared at nisi prius that action thereof against him; because after making the said it happened afseveral promises in the declaration, if any, &c. viz. on the brought, it 9th of December, 1803, at, &c. he became a bankrupt with- seems that the in the meaning of the several statutes concerning bankrupts; not avail him and that the several causes of action aforesaid in the decla- self of the deration mentioned, if any, &c. accrued, and each of them such a general did accrue to the plaintiff before such time as he, Kennedy, plea; which is became a bankrupt, &c. and concluded to the country. To this there was a demurrer, assigning for special causes, that it is not alleged in the plea that Kennedy becaine a bankrupt before the commencement of the suit; but, on the contrary, it appears by the plea that he became a bankrupt pleaded for any after its commencement; and that it does not appear that debt due before any commission of bankrupt had been awarded or issued became bankagainst the said defendant upon his said bankruptcy, &c. or rupt. that he has obtained his certificate under such commission, *[ 414 ] and duly surrendered himself, and conformed as by the statute, &c. is directed, or that the certificate was allowed, &c. before the commencement of this suit; and also for that it is alleged in that plea, that the plaintiff ought not to have or maintain her action against him; whereas the matter of the plea appearing to have arisen subsequent to the commencement of this suit, it ought to have been pleaded in bar of any further maintenance of the said action; and should have been pleaded as a plea puis darrein continuance, and the trading, petitioning creditor's debt, bankruptcy, &c. should have been specially set forth. Joinder in demurrer. the law shall arrested or im such time as he [415] Lawes, 1805. TOWER against CAMERON Lawes, in support of the demurrer. The question resolves itself into the first cause of demurrer assigned, Whether the plea ought not to have averred that the defendant became a bankrupt before the commencement of the suit? for the stat. 5 Geo. 2, c. 30, s. 7, only gives this general form of pleading in a certain case; that is, " in case any such bank. rupt shall afterwards be arrested, prosecuted, or impleaded for any debt due before such time as he became bankrupt;" in which case the statute says, "such bankrupt shall be discharged upon common bail, and shall and may plead, in general, that the cause of such action did accrue before such time as he became bankrupt; and may give this act and the special matter in evidence." If, therefore, the bankruptcy happened after the commencement of the suit, it must be pleaded specially; and this is consonant to the general rule of law in other cases, that in every plea in bar, which is pleaded in chief, all the facts in the plea which go to sustain the bar must appear to have happened before the action commenced; and though a bankrupt who conforms himself to the law, even subsequent to the action, has a good plea in bar to the action, yet he must plead it with all its necessary circumstances as other bars at common law, and cannot avail himself of this general and compendious plea, except in the given case provided for by the statute, where the bankrupt shall be impleaded afterwards for any debt due before the bankruptcy. Scarlett, contra, was stopped by the Court, after having referred to Willan v. Giordini, B. R. Trin. 1782 (a), which [416] over-ruled Parish v. Salkeld (b); though the plea there having been put in after issue joined, was plainly a plea puis darrein continuance; and to Miles v. Williams (c), where a similar plea upon the former statute of bankruptcy, 4 Ann. c. 17, s. 7, to the same effect was holden good. Lord ELLEN BOROUGH, C. J. It is enough in this case which comes on upon demurrer to say, that this is a plea given by the statute, and that every word required by the statute is to be found in the plea. All the rest is matter of evidence. If upon looking at the memorandum of the record at misi prius, and at the certificate given in evidence, (a) Co. Bank. Laws, 356. (8) 2 Wils. 139. (c) 1 Pr. Wms. 249. |