rities for money to the said William Currie and Richard Mytton, their heirs, executors, administrators, and assigns, and therefore passed under the indenture of the 24th day of May, 1803. N. C. TINDAL. J. A. PARK. S. GASELEE. J. B. BOSANQUET. .1888. MATHER V. THOMAS. ASPINALL and Others, Executors of ASPINALL, v. WAKE and Others. June 6. Plaintiffs, executors of A., continued to ASSUMPSIT for goods sold and delivered, with counts on promises by the Defendants to the testator in his lifetime, and counts on promises to the Plaintiffs as executors, for goods sold by them as exe- business, and cutors. carry on his draw bills as executors, for goods which they sold to Defendants: such bills, Held, that Plaintiffs might pro At the trial before Tindal C. J., it appeared that the Defendants had dealt extensively with the testator for stones dug from the testator's quarries, some of which Defendants -were leasehold. At the time of the testator's decease, having aca large quantity of these stones were lying on a wharf cepted sundry ready to be shipped. Some of these the Plaintiffs shipped off for the Defendants, and continued, for some months, to ship other cargoes, which were obtained from the quarries after the testator's death. In their correspondence with the Defendants touching the goods. the contracts for these stones shipped after the testator's decease, the Plaintiffs described themselves as executors, and were uniformly paid by bills drawn by them, as executors of Aspinall, and accepted by the Defendants. perly sue as executors for the price of At the trial it was contended that since the testator's death, the Plaintiffs had been carrying on business on their own account, and not as executors, and that therefore the declaration was ill for misjoinder; the jury, however, having found that there was no evidence of any contract with the testator, the first set of counts became immaterial; but it was also argued that the evidence did not support the allegation in the second set, that the Plaintiffs had dealt as executors, and the Plaintiffs must, therefore, be nonsuited. The Chief Justice, on the authority of Hornsey v. Dymocke (a), thought those words might be considered surplusage, and a verdict having been found for the Plaintiffs on the last set of counts, Taddy Serjt. obtained a rule nisi for a new trial, on the ground that the words as executors could not be rejected, and that the evidence did not support the allegation of a dealing in that character. Wilde and Jones Serjts. shewed cause. They relied on Hornsey v. Dymocke, Betts v. Michell (b) cited in Hosier v. Arundell (c), Cowell v. Watts (d), Marshall v. Broadhurst (e), King v. Thom (g), Wallis v. Lewis (h), and Crawford v. Whittal (i), as authorities to shew that the Court would look to the substance of the demand, and reject the words as executors if unnecessary for the Plaintiffs' purpose; but they contended that at all events the evidence shewed the Plaintiffs to have been dealing as executors, and not on their own account. The Court having decided the case on the latter ground, (a) 1 Ventr. 119. (e) 1 Cr. & J. 403. expressing expressing no decided opinion upon the former, it becomes unnecessary to go into the argument at length. Taddy and Jones Serjts. for the Defendant, contended that all the evidence shewed the Plaintiffs to have been dealing on their own account, the greater part of the stone having been quarried after the testator's decease. If so, there was a fatal variance between the evidence and the declaration, for the words as executors could not be rejected. From all the cases cited, it might be collected that parties can only sue as executors, where the sums to be recovered will be assets in their hands. In Buller's Nisi Prius (a) it is said, "Upon an action by an executor for rent due to his testator in his lifetime, and for other rent due in his own time, with another count on a quantum meruit for the rent of another messuage, in which he had not declared as executor, after judgment by default and a writ of inquiry executed, upon error brought judgment was reversed, because the demands were incompatible:" and in Ord v. Fenwick (b), where the plaintiff sued as executrix, for money paid by her to the defendant's use, and joined a count on promises to the testator, Lord Ellenborough said, "she could not pay this money out of her own funds, and raise an implied assumpsit against the defendant; nor could she properly declare in any other character; if she could, I admit that she ought not to have named herself executrix." To hold otherwise would occasion great inconvenience, by altering altogether the rights of the parties with respect to set-off and costs. TINDAL C. J. The objection of misjoinder cannot arise in this case, because the verdict for the Plaintiffs 1833. ASPINALL V. WAKE. (a) Bull N. P. 138. (b) 3 East, 109. E 3 having ASPINALE WAKE. 1833. having been confined to the second set of counts, the effect is the same as if the action had been brought on that set only; as if it were an action on promises to pay for goods sold and delivered by executors as executors. At the trial, I was called on before the Defendants' case was opened, to nonsuit the Plaintiff, on the ground that the evidence did not support the allegation of a delivery by the Plaintiffs in the capacity of executors; but without deciding upon the precise effect of the evidence, I thought at the time, upon the authority of the case in Ventris, that the words qs executors might be rejected; and the case went to the jury, who found a verdict for the Plaintiffs upon the second set of counts. We are now, therefore, at liberty to look at the general effect of the evidence on both sides, to see whether there is any variance on the ground which has been urged; and I think there is sufficient evidence to make out the right in which the Plaintiffs have sued. Before the death of the testator, the Defendants dealt with him for stone; at his death the Plaintiffs were appointed his executors, and continued carrying on the business upon the same premises. It is clear, therefore, that though they might have carried on the business on their own account, it was also open to them to have carried it on as executors. Then, in point of fact, according to some of the testimony, it was carried on by them as executors. They went on shipping stone, as before the testator's death part of the property, at least, from which the stone was quarried, was leasehold, and therefore could only have been possessed by the Plaintiffs, to be administered by them in their capacity of executors. The action, therefore, is brought by them in the character in which the principal contract was made. The Defendants themselves treated them as executors; and having done so, they cannot turn round and say that the description is improper. In one of their letters, the Plain tiffs describe themselves as executors; no objection is taken to that description in the Defendants' answer; and the payments are uniformly made by bills of exchange drawn by the Plaintiffs as executors, and accepted by the Defendants. If the Plaintiffs had sued on those bills, they must have described themselves as executors, as appears by the case of King and Others v. Thom (a), where the payee of a bill having indorsed it to King and others as executors, it was held that they might declare as such in an action against the acceptor. If they might have sued as executors on the bills by which the Defendants were to pay for the goods, it would be capricious to say, that they may not also sue. as executors for the original consideration of such bills. With respect to one inconvenience which has been urged against such a course, it is only necessary to repeat the answer given in that case by Mr. Justice Buller; "There can be no such inconvenience, as has been suggested, from the executors indorsing the bill; for it is immaterial whether they indorse it as executors or not." Another inconvenience which has been urged with respect to the incident of costs, was also urged and answered in Cowell v. Watts. We must be prepared to overrule those two cases, unless we hold that in the present case the Plaintiffs are entitled to sue as executors. As to the difficulty which has been started on the subject of set-off, it ought not to be deemed an answer to the Plaintiffs' claim; for we must decide on the law as it existed long before the statutes of setoff, which do not alter the rules of evidence. However, I do not feel the weight of the objection, for though the Plaintiffs do sue as executors, the Defendants may treat the contract as one on which the Plaintiffs are personally liable to costs. In King v. Thom, Buller J. said, "If 1 (a) 1 T. R. 487. E 4 they 1833. ASPINALL v. WAKE, |