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rights of the co-debtor. Neither does such a clause qualifying the
release *operate as a fraud on other creditors; for, as it appears *542]
on the face of the deed, all who execute that deed are aware of it and agree to it. We are clearly of opinion that the verdict was right.
Rule refused.(a) (a) Reported by H. Davison, Esq.
COLLINS, Executrix of ROBERT COLLINS, v. CROUCH, surviving
Executor of JANE PLAW. April 20. In an action by executrix of assignor of a lease against executrix of assignee, upon a covenant
by assignee to perform the covenants in the lease, and indemnify assignor for the breach of any of them, defendant pleaded Plenè administravit, and at the trial proved that the entire assets, including the consideration money for a sale by him of the lease in question, had, before
the breach of covenant complained of, been applied to the payment of simple contract debts. Held, a sufficient defence; for that the executor was not bound to retain the proceeds of such sale
for the purpose of indemnifying agaiust any future breach of covenant. Although some of the breaches in question were by non-payment of rent.
COVENANT. The declaration set out a lease, dated 30th October, 1828, by William Pike to Robert Collins, plaintiff's testator, of a house, &c., for twenty-one years, at the clear yearly rent of 521. 108., to be paid quarterly. The lease contained the usual covenants to pay rent, rates, and taxes, to repair, and to paint. The declaration then set out an indenture of 30th March, 1829, between Collins of the one part and Jane Plaw of the other, by which Collins assigned the premises to Jane Plaw, defendant's testatrix, for the remainder of the term,“ subject nevertheless to the payment of the said yearly rent or sum of 521. 108. reserved by the said indenture of lease, and to the observance and performance of the covenants, clauses, conditions, provisoes, and agree
ments therein contained, and *which, from and after the 25th *543]
day of the said month of March, 1829, on the part of the tenant, lessee, or assigns thereof, were and ought, or which should be, to be paid, kept, observed, or performed: and the said Jane Plaw did by the last-mentioned indenture, for herself, her executors or administrators, covenant, promise, and agree, to and with the said Robert Collins, his executors or administrators, that she, the said Jane Plaw, her executors or administrators, should and would, from and after the said 25th day of March, A. D. 1829, aforesaid, well and truly pay, satisfy, and discharge the said yearly rent of 521. 108., so reserved, &c., and to stand to, abide by, observe, perform, fulfil, and keep all and every the covenants," &c., - in the said indenture of lease contained, and which on the part of the tenant, lessee, or assignee thereof, were and ought to be paid, kept, done, and performed; and of and from the same, and all costs, charges, damages, and expenses, to be incurred by reason and on account of any breach, default, or neglect of, or in payment, observance, or performance [*544
of, the same respectively as aforesaid, should and would save harmless and keep indemnified the said Robert Collins, his executors and administrators, and his or their lands and tenements, goods, chattels, and effects whatsoever.” The declaration then stated that, after entry into possession by Jane Plaw, and after her death while such tenant, certain arrears of rent had become due, and certain dilapidations occurred; and that plaintiff, as executrix as aforesaid, had been compelled to pay part of the arrears of rent, the costs of repair, and other expenses, to Pike, the landlord. “ And so," &c.: breach: that defendant “ hath not kept the said covenant so by her the said Jane Plaw made as aforesaid, but *hath broken the same," &c. Plea : Plenè administravit. Issue thereon.
On the trial, before Lord DENMAN, C. J., at the sittings in Middlesex after last Hilary term, it appeared that defendant, after Jane Plaw's death, had assigned the lease to a Mr. Lake for 1251. 108.; and that the entire assets in the defendant's hands had been exhausted by the payment of a simple contract debt of 1001. due from Jane Plaw to the plaintiff (who had taken proceedings at law to recover it) as R. Collins's executrix, and of the funeral and other expenses. The breaches complained of, and which the plaintiff had been compelled to pay for, had occurred since the above-mentioned payments by the defendant: some were by non-payment of rent, some by non-repair. It was contended on the part of the plaintiff that these payments, being for simple contract debts, furnished no answer to the present claim, which was founded on a specialty debt; and that the defendant was bound to apply such assets as came to his hands to the payment, in the first place, of such specialty debt, of which it was proved he had had full notice. The Lord Chief Justice directed the jury to find a verdict for the defendant, if they were of opinion that the assets had been disposed of as stated by him; and a verdict was found for the defendant.
Watson now moved for a new trial on the ground of misdirection. The defendant is liable as executor, on the testatrix's covenant to indemnify, notwithstanding that he may have disposed of all the assets otherwise. It is contended, on the part of the defendant, that debts arising from breaches of the covenants in the deed *of assignment do not
[*545 rank before simple contract debts : but that is so, at all events, only where the breaches of covenant have occurred before the death of the covenantor. Here the covenant to pay rent has been broken since the death of the covenantor, and since the sale of the lease by her executor. He was, therefore, bound to retain such profits as came to his hands by the sale for the purpose of indemnifying for such breaches, and had no right to apply them in the first instance to the payment of simple contract debts. In 2 Williams on Executors, 1495, (a) it is said, “So, where the executor is charged as executor, in an action of covenant, for
(a) 4th ed.
non-payment of rent incurred in the defendant's own time, plenè administravit is a good plea, although the defendant might have been charged as assignee of the term.” “But," it is added, (a) “ if issue be joined upon this plea, and it should be proved that the executor has received any profit from the land, there would, it should seem, be a verdict against him : for he could not legally apply the profits to any other purpose than payment of the rent." [PATTESON, J.—«Profits” there seems to mean yearly profits.] It is not necessary that the profits should be yearly: the executor is bound so to apply any profit that he has derived from the land. In the present case, the amount of money received by him for the sale of the lease is a profit of that kind : and so would a premium be, or a grassum, supposing he had underlet at a peppercorn rent. In each of these cases he would have received a profit by disposing of the interest in the land; and such profit he is bound to apply to the payment
of rent. Read v. *Blunt, 5 Sim. 567, referred to in 2 Williams *546]
on Executors, 878,(6) may be relied on for the defendant. But there is nothing to show that the assets in that case included profits derived from land. [ERLE, J.-Do you say that the defendant was bound to retain the profits until a breach of covenant occurred?] It is not necessary to go so far in this case, as to breaches of every kind: there are breaches of the covenant to pay rent, as well as of the covenant to repair. [PATTESON, J.-Suppose the profits exceed the rent due; is he to retain the excess ? ERLE, J.-An assignee assigning over is exonerated; is not the defendant in this position ?] Here there is a distinct covenant to indemnify for breaches : the defendant is still bound by that.
PATTESON, J.—There will be no rule in this case. The action is brought, not by the party entitled to rent, but by the representative of the original lessee against the representative of the assignee, upon : covenant by the assignee, not to pay rent, but to indemnify for all breaches of the covenants in the lease. The assets had been applied before the breaches complained of: and the only question is, whether the doctrine which has been quoted from Williams on Executors applies to the present case. That doctrine, I apprehend, applies. only when the action is brought upon a covenant to pay rent. The executor is there held chargeable only when he is in a position to be sued as assignee, that is, when he is in the receipt of the rents and profits of the land. The defendant here had parted altogether with the interest in the land, *547]
and had applied the proceeds, as he *was entitled to do even up
to one day before an actual breach of covenant, according to Read v. Blunt, 5 Sim. 567. There is no authority to show that the exe
. cutor is bound to retain the profits for the purpose of satisfying a future breach ; still less can that be maintained where the assets in his hands are not profits, in the ordinary sense, but the value of the land which be
(a) 1496, note (p).
(6) See note (n) there.
has sold away. I think that Read v. Blunt applies, and that the direction of the Lord Chief Justice was right."
ERLE, J.(a)—The executor has applied the assets in payment of simple contract debts, and cannot be considered liable for not retaining them with a view to indemnify for some future breach of covenant. It is said that there is an exception where the assets consist of profits arising from the land, and that such assets ought to be retained for the payment of rent, where there is a covenant to pay it. That exception, however, if it exist, does not apply here: the covenants broken are covenants for the purpose of indemnification, not to pay rent to the covenantee : and the general rule applies.
Rule refused. (a) WIGHTMAN, J., was absento
*GRAHAM v. GRACIE. April 20.
[*548 A count in debt stated that defendant was indebted to plaintiff in 1001. "for the price or value
of certain debts then due from divers other persons to the plaintiff, and then sold and
transferred by the plaintiff to the defendant.” Held, op motion in arrest of judgment, that the count was not bad for want of more special aver
ments : for that, although the sale of debts would not enable the transferee to sue upon them in his own name, yet, as the permission to sue in the name of the transferor might be the subject of an agreement which would create a debt, such debt might be properly sued
for in a common indebitatus count. A count in detinue stated that plaintiff delivered to defendant a certain bill of exchange [of the
plaintiff, to wit, a bill of exchange bearing date, to wit, the 20th day of November, A. D. 1848, drawn by the plaintiff upon and accepted by the defendant) for (the payment to the plaintiff or his order of a certain sum, to wit] 851. [two months after the date thereof ], of great value, to wit, of the value of 1001., to be redelivered by defendant to plaintiff on request. Breach,
that defendant did not redeliver the bill, but detained. Plaintiff, on the trial, proved that a bill of exchange for 85l. was in the defendant's hands, but
did not prove the particular description as laid. The Judge, on objection, amended, first by striking out the words “ two months after the date thereof," and then, on further objection, all
the words within brackets. Held, that the count, so amended, was not specially demurrable for want of certainty; and that the amendment was warranted by stat. 3 & 4 W. 4, c. 42, s. 23.
DEBT and detinue. The first count stated that defendant heretofore, to wit, on, &c., was indebted to plaintiff in 1001. for the good-will of a certain trade or business theretofore carried on by plaintiff, and by him then sold, relinquished, and given up to and in favour of defendant at his request : And for the price or value of certain debts then due and owing from divers other persons to the plaintiff, and then sold and transferred by the plaintiff to the defendant at his request.” And in 1001.
. on an account stated. Breach, non-payment. Second count : “ that the plaintiff heretofore, to wit, on,” &c., « delivered to the defendant a certain bill of exchange [of the plaintiff, to wit, a bill of exchange bearing date, to wit, the 20th day of November, A. D. 1848, drawn by the plaintiff upon and accepted by the defendant) for (the payment to the
] [ plaintiff or his order of a certain sum, to wit] 851., (two months after
the date thereof], of great value, to wit, of the value of 1001., to be re
delivered by the defendant to *the plaintiff when the defendant *549]
should be thereunto requested.” Breach, that defendant, although requested, did not deliver the said bill of exchange to the plaintiff, but the defendant hath wholly neglected and refused so to do, and hath detained and still unjustly detains the same from the plaintiff.”
Pleas: 1. As to the first count, Nunquam indebitatus. 2. As to the second count, Non detinet. Issues thereon.
On the trial, before WILLIAMS, J., at the last Spring assizes for Somersetshire, it appeared that the plaintiff had agreed verbally with the defendant to sell him the good-will and outstanding debts of the plaintiff's business of a travelling draper, and to “show up" the round" and the debts to him. A shilling had been given to bind the bargain. About a week after the agreement, the plaintiff, who represented himself as in want of ready money, obtained the defendant's acceptance to the bill of exchange described in the last count of the declaration. The plaintiff was unable to get the bill cashed; and the defendant, having taken it out of plaintiff's hand, declined having anything further to do in the matter until the debts were shown up, and refused to let plaintiff have back the bill. The evidence in support of the last count showed that a bill of some kind for 851. was in the hands of the defendant, but failed to establish any of the particulars of the bill as described in the count. It was objected, for the defendant, that this evidence did not support the count. The learned Judge was of the same opinion, and amended the count by striking out, first, the words “two months after the date thereof,” and afterwards, on its being objected that the count, as then amended, had not been proved, all the words within brackets ;
so that the bill then stood *described as “ a certain bill of ex. *550]
change for 851." The amendments were objected to, on the ground that the count as altered, was demurrable: and leave was reserved to move to enter a verdict for the defendant. Verdict for plaintiff.
Crowder now moved according to the leave reserved.(a)—In detinue, where the plaintiff seeks to recover the specific chattel, great certainty of description is necessary; Co. Lit. 286 b; note (1) to Taylor v. Wells, 2 Wms. Saund. 74 b. The declaration here, as amended, “is bad on special demurrer, for want of such certainty; and, therefore, the amendment should not have been made ; Evans v. Powis, 1 Exch. 601. That case, perhaps, may apply only to a pleading made generally demurrable; but in Oakley v. Pritchard,(b) the Court of Exchequer held that an amendment which makes a declaration specially demurrable is to be disallowed in banc. (Montagu Smith here stated that he was counsel for the defendant in Oakley v. Pritchard, and at the trial took the specific objection that the amendment would make the declaration specially
(a) Before Patteson and ERLE, Js.