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![handle is hein.slavery/ssactsengr0609 and id is 1 raw text is: FOLEY V. BURNELL [1789]
debt upon the assets of the deceased; and therefore to warrant a judgment, charg-
ing the proper estate of the executor or administrator, it must appear that the
promise was in writing, which was not alledged in the present case.
After hearing counsel on this writ of error, the following question was put to
the judges, viz. Whether sufficient matter appears upon this declaration, to
warrant, after verdict, the judgment entered up against the defendant in her
personal capacity7 And the lord chief baron of the court of Exchequer having
delivered the unanimous opinion of the judges in the negative, it was ORDERED
and ADJUDGED, that the judgment given in the court of Exchequer, reversing the
judgment of the court of King's Bench, should be affirmed; and that the record should
be remitted, etc. (MS. Jour. sub anno 1777-8, p. 941.)
[34] CASE 7.-ANDREW FOLEY,-Plaintiff; JOHN BURNELL and another,-
Defendants (in Error) [27th April 1789].
[Mew's Dig. vi. 1337; xv. 1687, 1688: 4 Bro. P. C. 319.]
[Whenever an executor assents to a bequest in his testator's will, there is an end
of his interest in the thing bequeathed, and he cannot afterwards dissent.
And it is equally true, that the executor's assent to the first devisee, is an
assent to the remainder over.]
** This case cannot be understood without a reference to that in the
subsequent part of this work; the arrangement by which this is made to
precede may seem unpleasing, but is owing entirely to the original editor,
Mr. Brown.-As to the point above determined, see post tit. Legacies (5 Bro.
P. C. 51).
JUDGMENT of the Exchequer Chamber, (affirming judgment of B. R.)
AFFIRMED.**
Notwithstanding the determination of the house upon the former appeal, (Vid.
post, title Heir Looms) the present plaintiff in error brought an action of detinue,
as executor, in the court of King's Bench, for recovery of the plate in question.
On the trial of which action at the assizes for Worcester, in March 1786, the jury
found a special Verdict, stating the will of the late Lord Foley to the same effect as
in the former case, with this addition:
The jurors further find, that on the decease of the said testator, the said Robert
Foley and Andrew Foley the plaintiff in error, took possession under the said devise
of the said mansion-house at Stoke aforesaid, with the appurtenances, and con-
tinued the possession thereof during the life of the said Robert Foley;
and, that since his death, the said Andrew Foley, the plaintiff in error,
has been in the possession thereof, under and by virtue of the said devise, and
now is in the actual possession thereof; and, that during the life-time of the
said Robert Foley, they the said Robert Foley, and the said Andrew Foley, the'
plaintiff in error, and since the death of the said Robert Foley, he the said Andrew
Foley, the plaintiff in error, have, and has kept servants at the said mansion-house
at Stoke, to look after the same, and have and hath paid them wages for the same,
and have and hath paid the land tax for the same; and that the said Edward Foley,
by the permission of the said Robert Foley, and Andrew Foley, the plaintiff in error,
hath resided at the said mansion-house at Stoke whenever he pleased, and hath paid
the common tenants taxes for the same.
And the jurors further find, that one of the said services of plate in the said will
mentioned, upon the death of the said testator, was by the said Robert Foley, and
Andrew Foley, the plaintiff in error, taken to and placed in the said mansion-house
at Stoke, there to be held and enjoyed according to the direction of the said will,
and that the said Edward Foley having been permitted to make use of such plate
whilst at Stoke, without the knowledge, privity, or consent of the said Andrew
Foley, the plaintiff in error, and Robert Foley, or either of them, on the first day
of January 1779, removed part of the said service of plate from Stoke afore-[35]-
said, to a house he then resided at in Portland-place, in the county of Middlesex,
IV BROWN.](ViewImageLocal?handle=hein.slavery/ssactsengr0609&div=1&collection=&method=preview&ext=.png&size=3)