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Exch. of Pleas, tracted except jointly; but if he refer to a particular bill, 1832.
- he ties himself down to that bill; and, as he cannot tell by JOHNSON foreknowledge what such bill will contain, an affidavit so Popplewell. referring is bad, according to principle and common sense.
Vaughan, B.—This case is distinguishable from Lang v. Comber, as in this case no bill existed when the affidavit was sworn. In Lang v. Comber, the declaration to which the plea referred was in existence when the affidavit was sworn.
BOLLAND, B.--I think that Lang v. Comber must have proceeded on the distinction alluded to by my learned Brothers. I cannot see how, if such an affidavit were false, the deponent could be indicted for perjury. Such an affidavit might be made before the action was brought, and might be quite extrajudicial.
Rule absolute, on payment of costs.
Gleadow and Others, Executors of Gleadow, v. ATKIN
and Another, Executors of Atkin. Debt, on a com- DEBT on bond, entered into by Atkin, the testator, and mon money
1- one Boyle, conditioned for the payment of 2501. to Gleabond, by execu- uc Dugie, couTuos tor of obligee dow, the testator. against executor of obligor. Plea— that the money mentioned in the condition was part of the personal estate of A. B., deceased, by whom it had been bequeathed to the testator of the plaintiff and the testator of the defendant, and the survivor of them, and the executors and administrators of such survivor, upon trust to put and place the same out at interest, upon such real or other sufficient security as they might approve of, and to pay the interest, &c., &c.; that the testator of the plaintiff died, leaving the testator of the defendant surviving; whereupon the said personal estate of A. B. vested in the defendant's testator, to be by him and his executors and administrators applied according to the trusts of the will of A. B.:-Held, on general demurrer, that the plea was bad.
The defendants pleaded, amongst others, the following Exch. of Pleas,
1832. plea-Actio non, &c.; because they say, that, heretofore, to wit, on the 14th day of August, 1800, at the county of GLEADOW York aforesaid, one Cuthbert Thew made his last will and testament in writing, and thereby gave and bequeathed unto the said Robert Gleadow, since deceased, and the said John Atkin, and the survivor of them, and the executors and administrators of such survivor, all and singular his stock and implements in trade, the lease of his house, his ready money, bills, bonds, notes, mortgages, and other securities for money, debts due and owing to him, and all other his personal estate and effects whatsoever and wheresoever (except his household furniture to his wife for life, and subject to the payment to her of the sum of 1601.); upon trust (amongst other things) that they the said Robert Gleadow (since deceased) and John Atkin (since deceased), or the survivor of them, or the executors or administrators of such survivor, should forthwith, or as soon as conveniently might be after his decease, sell and dispose of such part of his personalty as was saleable, and collect and receive all his debts owing to him, and the money arising from such sale, with the debts to be received, the amount of monies owing to him on securities, with the ready money he might die possessed of, he the said Cuthbert Thew willed and directed that his said trustees, or the survivor of them, or the executors or administrators of such survivor, should put and place out at interest, on real or other sufficient securities, as they should approve of, and pay the interest thereof, as the same should accrue and be received by them, unto his said wife or her assigns, during her natural life. And the said Cuthbert Thew by his said will appointed the said Robert Gleadow (since deceased), and the said John Atkin (since deceased), executors thereof. And the said defendants, executors as aforesaid, further say, that the said Cuthbert Thew, afterwards, to wit, on the 1st day of Oc
Exch. of Pleas, tober in the year aforesaid, at the county aforesaid, died 1832.
without altering or revoking his said will; and that there-
Alexander, in support of the demurrer.—The plea af. Exch. of Pleas,
1832. fords no answer to the action. It discloses matters of u mere parol; and they cannot vary a claim under seal. A Gleadow defeazance must be by matter as high as the instrument to be defeated. Therefore, where, in debt on bond, conditioned for payment of 201. on a certain day, the defendant pleaded, that, before the day, the plaintiff, on account of a trespass committed by his cattle on the defendant's lands, gave him a further day of payment, the plea was held bad on demurrer, because an agreement by parol cannot dispense with a deed. Hayford v. Andrews (a). That rule is fixed by a long series of authorities, and cannot now be shaken. Blemerhasset v. Pierson (6); Rogers v. Payne (c); Roe v. Harrison (d); Mease v. Mease (e); Litller v. Holland (S); Davey v. Prendergrass (g). There is no objection to the suit on the ground of the co-executorship of the parties. The bond, in terms, treats them as independent parties, and, quoad the right of action which it gives, they lose the character of co-executors. Foster v. Allanson (h). But it will be argued, on the part of the defendants, that the plea is calculated to prevent circuity of action, and therefore is an answer to the declaration. The cases upon this subject are collected in 2 Wms. Saund. 149 a, n. 2. They will, however, on examination, be found inapplicable. The true principle to be applied to the present question is found in Moore, 23, pl. 80; viz. that a cause of action against a plaintiff will be no bar to an action by him for avoiding circuity of action, when the recovery in both actions is not equal. Now, in this case, the parties are not on an equal footing. By allowing his
Exch. of Pleas, co-executor to have the testator's money on his mere per1832.
sonal security, Gleadow became liable as for a devastavit; GLEADOW Wilkes v. Steward (a); Langston v. Ollivant (6); and, upon
Gleadow's death, that liability devolved upon his executors, the plaintiffs. 4 & 5 W. g M. c. 24, s. 12. They have, consequently, a right to recover the amount of the bond debt, in order to insure its due application, pursuant to Thew's will, and so protect themselves against the consequences of their testator's devastavit. Until the trust is duly performed, they are liable to Thew's widow, and this bond is their only indemnity. But the defendants are very differently circumstanced. Their testator has actually had the money in question; and on what principle can it be argued that he is now also entitled to the security? The bond could not, at law, be made available in the hands of the defendants, for they cannot sue themselves. Cheetham v.Ward (c). Thew's estate would, therefore, be deprived of a better security, if the bond could not be enforced by the plaintiffs. In all the cases upon the doctrine of circuity, will be found one or other of the following ingredients-either there were parol liabilities and parol defences; or covenants by deed, defeating liabilities by deed; or between parties in the same right, and without any liabilities to third persons; or where mutual rights of action were existing. But the present case is without any one of those ingredients. The liability is by deed; there is no covenant by deed defeating it; the plaintiffs are liable over to a third person; and the defendants have no right of action against the plaintiffs. If the doctrine of circuity of action do not apply to this case, the plea is clearly insufficient, and the plaintiffs are entitled to judgment.
(a) Coop. Rep.6; 2 Cox Rep. I.
(c) I B. & P. 630.
(b) Coop. Rep. 33.