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![handle is hein.slavery/ssactsengr0034 and id is 1 raw text is: BOLTON V. GLADSTONE
counts on promises made by the intestate. But there the plaintiff declared-that he
had accounted with the defendant as administratrix, and here the account is only
alleged to have been stated with the plaintiffs below, executrix and executors, not
saying as executrix, &c. ; which is no allegation that the debt arose to them in
their representative [153] character. Brigden v. Parkes (a)1. But at any rate the last
count for interest on a forbearance by the plaintiffs below must be founded on a cause
of action arising in their own time, which therefore clearly cannot be joinder with the
other counts. It is not sufficient that the principal was due to the testator in his life-
time ; for if a new security be taken by the executor, as a promissory note, he cannot
declare on that jointly with other promises to the testator. Belts v. Mitchell (b)1. A
fortiori then he cannot recover interest accruing in his own time with any other count
on promises to him merely as executor. It is true, that Buller J. in King v. Thorn (c),
and in Cockerill v. Kynaston (d), says, that the only question in such cases is, whether
the sum when recovered will be assets of the testator; but that rule was doubted in
Bollard v. Spencer (e); and though adverted to again in Ord v. Fenwick (f), yet there
the promise was laid to be made to the plaintiff as executrix.
Bosanquet contrA, observed, that by necessary implication where the parties to
whom the promise was alleged to be made named themselves executrix and executors,
it must be taken to have been made to them in their representative capacity, and
meant the same as if it had been said as executrix, &c. ; more especially when it is
said, executrix, &c. as aforesaid, which refers to the antecedent counts, in which it
is admitted that they sued in their representative characters. [Lord Ellenborough C.J.
We cannot import any thing from the other counts ; we must look to this upon the
account stated, and see whether it [154] can be joined with the rest.] In the very
beginning of the declaration it is stated, that the defendant was attached to answer the
plaintiffs, executrix and executors, &c. ; and in the conclusion they make a profert of
the letters testamentary, which shews that they sued as such.
Lord Ellenborough C.J. That leaves the question as before. It is the same as if
it were said, A., B., &c. being executor, &c. it is not an allegation of their suing as
such ; and we can supply nothing by intendment. If it had been alleged that they
sued as executrix, &c. that would have been enough to have raised the other question,
whether a count upon promises on an account stated with one as executor can be joined
with other counts on promises with the testator? upon which there are authorities
both ways. The cases in favour of the proposition re Bull v. Palmer (a)2, and Mason
v. Jackson(b), together with the opinion of Mr. Justice Buller in the cases cited, that
wherever the sum recovered by the executor on promises to himself would be assets
in his hands, there the count may be joined with counts on promises made to the
testator. But there are many authorities the other way, and I think you will hardly
find the point tenable. However, if you wish to have time to look into the first point,
to see if the question can be raised on this record, the Court will give you leave to
mention it again, if you think it will admit of argument. At present,
Per Curiam. Judgment nisi, &c. for the
Plaintiff ifi error.
And Bosanquet, a few days afterwards, said that he could not get rid of the
preliminary objection.
[155] BOLTON against GLADSTONE. Wednesday, May 9th, 1804. A sentence of a
foreign Court of Prize is conclusive evidence in an action upon a policy of insur--
ance upon every matter within the jurisdiction of such Court upon which it
has professed to decide. Therefore where a Danish ship, warranted neutral, was
captured by a French ship of war, (Denmark being at peace with France), and.
the Court in which she was libelled as prize, professing to consider that the
built of the vessel was unknown, that she was sold to a neutral subject only since
the declaration of war, that the bill of sale does not mention her place of built or
her original owner, that the mate and third officer were naturalized Danes only
(a)' 2 Bos. & Pull. 424. (b)' 10 Mod. 316.
(c) 1 Term Rep. 489. (d) 4 Term Rep. 281.
(e) 7 Term Rep. 358. (f) 3 East, 110.
(a)2 2 Lev. 165. (b)2 3 Lev. 60. _
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5 E.AST, 153.](ViewImageLocal?handle=hein.slavery/ssactsengr0034&div=1&collection=&method=preview&ext=.png&size=3)