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Exch. of Pleas, tober in the year aforesaid, at the county aforesaid, died 1832.

without altering or revoking his said will; and that thereupon the said Robert Gleadow (since deceased) and the said John Atkin (since deceased) took upon themselves the execution of the said trusts in the said will mentioned; and that the said wife of the said Cuthbert Thew is still in full life, to wit, at the county aforesaid. And the said defendants, executors as aforesaid, further say, that the said sum of money in the said condition of the said writing obligatory mentioned, was part of the personal estate of the said Cuthbert Thew, and as aforesaid bequeathed to the said Robert Gleadow (since deceased) and the said John Atkin (since deceased), and the survivor of them, and the executors or administrators of such survivor, to be by them applied according to the trusts of the said will, and was not the proper money of the said Robert Gleadow (since deceased); and that the said writing obligatory was given to secure the payment to the said Robert Gleadow (since deceased), as such trustee as aforesaid of the said money and interest, the same being money to be applied according to the trust specified in the said will of the said Cuthbert Thew. And the said defendants further say, that the said Robert Gleadow in the said writing obligatory mentioned, afterwards, to wit, on the 17th day of September, 1826, at the county aforesaid, died, leaving the said John Alkin (since deceased) him surviving; whereupon all and singular the said personal estate by the said Cuthbert Thew bequeathed as aforesaid to the said Robert Gleadow (since deceased) and John Atkin (since deceased), and the survivor of them, and the executors and administrators of such survivor, became and was vested in the said John Atkin (since deceased), to be by him and his executors and administrators applied according to the said trusts of the said will of the said Cuthbert Thew; and this &c., wherefore, &c.

General demurrer and joinder.


Alexander, in support of the demurrer.—The plea af. Exch. of Pleas,

1832. fords no answer to the action. It discloses matters of mere parol; and they cannot vary a claim under seal. A defeazance must be by matter as high as the instrument

Atkin. 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($); 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

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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 ATKIN. Gleadow's death, that liability devolved upon his execu

tors, the plaintiffs. 4 & 5 W. & 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.

(6) Coop. Rep.33.

(a) Coop. Rep.6; 2 Cox Rep. 1.

(c) 1 B. & P. 630.

Cresswell, contrà.The argument for the plaintiffs pro- Exch, of Pleas,

1832. ceeds on the assumption that the estate of the defendants' testator is insufficient to discharge the bond debt. There GLEADOW is no suggestion to that effect upon this record. If the mo

ATKIN. ney had been lent by Atkin in Gleadow's life-time, and Atkin had left no money of his own wherewith to satisfy the debt, it might have perhaps rendered the plaintiff's testator liable; but, unless there were a devastavit in his lifetime, his executors are not liable. (Bayley, B.- Is not the lending to a person who has no right to borrow, a misapplication?] No liability would arise therefrom until a loss happened. But, suppose that the plaintiffs were to recover in this action, the defendants would have an immediate right to recover this money back from the plaintiffs. They might immediately bring an action for so much money had and received to their use; for, when Gleadow died, Atkin, as the surviving trustee, was entitled to the whole sum. There is nothing to shew that the money in question had ever been in the hands of Gleadow, or that he did any thing more than allow Atkin to hold what he had received. It does not at all appear that Gleadow had handed over this money to Atkin; and there is nothing in the pleadings to shew that Gleadow had ever incurred any liability whatsoever. No proceedings could have been taken against Gleadow, for allowing the money to remain in Atkin's hands. [Bayley, B.-Would not a Court of Equity have said, that this was a misapplication, and have insisted on the money being laid out in a proper manner? If a bill had been filed against Gleadow's executors and Atkin's executors, and Atkin's estate had been insolvent, might not Gleadow's estate have been liable to make up any deficiency. If so, have not Gleadow's executors an interest in this money being properly applied; and have they not a right to protect themselves by this security? Is not their liability sufficient to give them a right to sue upon this bond?] There would be no such




Erch. of Pleas, liability, unless Atkin's estate had been insolvent at the

time of Gleadow's death. That does not appear by the pleadings; and, if it were the fact, it ought to have been replied. This plea is not an attempt to avoid a bond by parol, like Davey v. Prendergrass; but it sets up as a defence, that the money to be recovered in this action must immediately come back to the defendants, and that they could recover it from the plaintiffs in another action, and the law makes this a defence, to prevent a circuity of actions. Bishop v. Hayward (a), Teague v. Hubbard (). In effect, the plea admits the bond and avoids it, and it was clearly competent for the defendants to shew on their plea the real nature of the transaction, so as to avoid the bond. Grenville v. Attkins (c), Paxton v. Popham (d). The defendants do not contend that there was an agreement by parol not to sue, but they say the right to sue is gone,

and that, under the will of Thew, the whole interest, upon the death of Gleadow, vested in Atkin. In Bottomley v. Brooke, cited in Winch v. Keeley (e), the defendant in an action of debt on bond pleaded that the bond was given for securing 1001. lent to the defendant by one E. C., and was given to the plaintiff in trust for her, and that E. C., before the commencement of the action, was indebted to the defendant in more money than the amount of the bond; and, on demurrer, this was considered a good plea. (Bayley, B.—That was a plea of set-off, for money due from the cestui que use, of the money due on the bond. Such pleas are, I believe, frequently pleaded now.] Rudge v. Birch, cited in the same case (f), is to the same effect. It appears from this class of cases, that it is a good plea to shew that money to a greater amount than the sum claimed is due from the cestui que use to the defendant; and

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