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![handle is hein.slavery/ssactsengr0068 and id is 1 raw text is: 792 BEETE' V. BIDGOOD 7 B.& C. 453.
the plaintiff would be entitled to judgment de bonis testatoris. As to the third
count, there can be no doubt that it charges the defendants in their representative
character, and that the plaintiff is entitled to have judgment de bonis testatoris. The
question for us mainly arises on the second count, in which the defendants are charged
with having received money in their character of executor and executrix. The question
is, whether that makes the defendants liable in their representative character, so as
to warrant a judgment de bonis testatoris. All the authorities shew that such a count
only makes the defendant liable personally; and it appears to me, that if the case
were perfectly new, that would be the correct view of the law upon the subject.
Upon the death of a testator an executor is bound to pay his debts in a certain order ;
first, debts due to the Crown, then judgment debts, then specialty debts, and, lastly,
debts on simple contract. But these last must be debts of the testator. In this case
there never was any simple contract debt owing from the testator. The debt stated
in the declaration is a debt contracted by the defendants, in their character of executor
and executrix, by their having received a sum of money to be paid over to the plaintiff.
That is a debt not contemplated by the law in the rule laid down as to the order in
which debts are to be paid. If the testator in his lifetime had been indebted to the
plaintiff for money had and received to his use, there would not be any specific appro-
priation of the money so received to the plaintiff's use; but that money, oil the death
of the testator, would have gone into his general funds, and the debt must have been
paid out of those funds in its regular order. But where an executor receives [453]
money to the use of a particular individual, it operates as a specific appropriation of
that money belonging to the party, and he, in his individual capacity, must be liable
for the money so received : it has nothing to do with the accounts of the testator. For
these reasons, I am of opinion that the second count cannot be joined with the third,
and that the judgment, therefore, must be for the defendants.
Judgment for the defendants.
JOSEPH BEETE against HENRY FISHER BIDGOOD. Tuesday, November 20th, 1827.
Where a contract was made for the sale of an estate at a certain price, and it was
agreed that this should be paid by instalments at certain future days, with
interest, calculated at 61. per cent. per annum ; and promissory notes were given
for these sums, compounded of the instalments and that which was called interest:
Held, that the whole must be considered as the purchase-money of the estate, and
that the bargain was not usurious.
[S. C. 1 Man. & Ry. 143; 6 L. J. K. B. 0. S. 35.]
Assumpsit on the following promissory note:-
London, 10th March 1821.
On the 1st July 1825, we promise to pay to Joseph Beete Esq., his executors or
administrators, at the house of Messrs. Sandbach, Tuine, and Co., of Liverpool, the sum
of 39681. for value received, in second instalment, with interest included, as expressed
and specified in agreement for the sale of his moiety in plantation Meten Meer Zorg,
in the colony of Demerara, to John Newton.
£3968. JOHN NEWTON.
H. F. SLOANE.
Plea, the general issue. At the trial before Lord Tenterden C.J., at the Guildhall
sittings before Michaelmas term 1826, a verdict was found for the plaintiff, subject to
the opinion of this Court on the following case :
The note in question was signed by the defendant, who then bore the name of
Sloane, but afterwards changed it to Bidgood; the signature of John Newton, [454] the
other maker of the promissory note, was also proved; and that he died before the com-
mencement of the action. The note was duly presented for payment on the day it
became due at the house of Messrs. Sandbach, Tuine, and Co. of Liverpool, mentioned
in the said note, and payment was refused.
The agreement referred to in the note, and the account made out, settled, and
signed between the parties at the time, were as follows:
The former recited that Joseph Beete hath contracted and agreed with the said
John Newton for the absolute sale to him of the undivided moiety or half part of him](ViewImageLocal?handle=hein.slavery/ssactsengr0068&div=1&collection=&method=preview&ext=.png&size=3)