1805.

The KING
against
The
Inhabitants of

cording to the decisions in R. v. Darlington, and R. v. Heath, the son had ceased to be part of his father's family before the apprenticeship to him took place. The object of the statute of Anne was to prevent burthens being brought upon a parish by apprentices or servants serving certificated MORTLAKE, persons, whose residence in the parish was protected by certificates; and that reason applied as well to all other per sons who were protected by the certificate, while they continued part of the certificated man's family; but as soon as any of the children ceased to be a part of the father's family by being emancipated, the parish officers, if they thought that he was likely to encumber the parish, might have removed him before the late act, and then all the mischief which was intended to be guarded against by the statute of Anne was done away, and it no longer applied.

LE BLANC, J. It is immaterial whether the master of the apprentice were settled in the parish of Great Marlow at the time; the only question is, Whether the master were, within the meaning of the statute of Anne, such a person with whom no apprentice could gain a settlement by serving him? And that depends on whether the master were part of his father's family at the time when his own son Thomas was apprenticed to him. Now at that time he had ceased to be part of the father's family; the family itself was at an end, and William the son was residing as the head of a dis- [ 404 ] He could no longer tinct independent family of his own. therefore be considered as residing under the certificate, because the certificate would not have protected him from being removed. Then there is no case which says that he was not such a person with whom an apprentice could gain a settlement. If this point had not been already decided in Rex v. Darlington and Rex v. Heath, I should not have hesitated to say now for the first time, that William was not a person residing under the certificate as part of the certifi cated man's family at the time when his son was apprentice to him.

Order of Sessions quashed.

1805.

Monday,
May 20th.

The Court refused to proceed summarily against a stew

ard who was an attorney, to compel him to account before

receipts and

payments in respect of a mortgaged estate, and to

pay the balance to his employer, and to deliver

Cocks against HARMAN.

AMPIER moved for a rule upon Mr. Harman, an at

DAMPIER

torney of this court, to shew cause why he should not deliver to Mr. Cocks, as the heir at law, and only acting executor of James Cocks, Esq. his late father, deceased, an account of his receipts and payments in respect of a certain the Master for mortgaged estate, and why he should not deliver up upon oath all such deeds, papers, and writings as are now in his custody or power, relating to the said estate, together with the powers of attorney given to him by the said J. C.; and why it should not be referred to the Master to take the account; and why Mr. Harman should not pay the balance over to Mr. Cocks. This was moved upon an affidavit, that Mr. Harman had acted as steward to J. C. the elder, in which character these documents had been delivered to him, per subject of and that there was a balance now in his hands: and he a bill in equity, not a case cited Hughes v. Mayre (a), where the Court entertained summary jurisdiction over an attorney of the court in obliging him to deliver up court rolls, deeds, and writings, which had come to his hands as steward of a court and receiver of rents, on satisfaction of his lien. But

up upon oath all

deeds, writings, &c. relative to

the estate; this being the pro

and

for a mandamus

to compel a steward of a

manor to deliver

up court rolls, &c.; in lieu of

which this summary mode of

proceeding has been adopted where the stew

ard of the

manor is an at

torney.

*[ 405 ]

The Court refused the rule; distinguishing this from the former case, where the principal object of the application was court rolls; to compel the delivery of which from the steward to the lord, a mandamus would have lain. But this application, they said, was merely the subject matter of a bill in equity, and the Court had never yet gone so far as to do that by a summary rule which was the proper subject of a bill in equity, merely because the party against whom the application was made happened to be an attorney of the Court; the application not regarding his duty as an attorney. That the cases hitherto had only gone the length of substituting a more easy proceeding in lieu of the more expensive one by mandamus.

Rule refused.

(a) 3 Term Rep. 275

Mathew

1805.

MATHEW COWELL and JANE his Wife, Administratrix Monday, of Bowes, against WATTS.

May 20th.

a promise tothe plaintiff as

by her after the

testate may be. joined with a count upon au account stated ministratrix; and costs when recovered

with her as ad

for the damages

would be assete,

L406 J

THE plaintiffs declared in the first count of the declaration A count upon in right of Jane (the wife) as administratrix of T. Bowes, who died intestate: for that whereas the defendant administratrix for goods sold after the death of the intestate, to wit, on 1st of May, 1803, and delivered at Westminster, &c. was indebted to the plaintiffs in right death of the inof the said Jane, as administratrix as aforesaid, in 507. for a moiety of divers goods by the said Mathew and Jane, as administratrix as aforesaid, before that time sold and delivered to the defendant at his request; and being so indebted, the defendant, in consideration thereof, afterwards, &c. pro mised to the said Mathew and Jane, as administratrix as aforesaid, to pay them, &c. There was a second similar count on a quantum valebant. And the plaintiffs declared in a third count, that whereas also the defendant afterwards and after the death of the intestate, to wit, on the same day and year, &c. accounted with the said Mathew and Jane, as such administratrix as aforesaid, of and concerning divers sums before that time due and owing from the defendant to the said Mathew and Jane, as such administratria as aforesaid, and being then in arrear, and upon that account the defendant was then and there found in arrear and indebted to the said Mathew and Jane as such administratrix as afore, said, in the further sum of 501. &c. the defendant in consideration thereof, on, &c. promised the said Mathew and Jane as such administratrix as aforesaid, to pay them, &c.; yet the defendant hath not paid, &c. After verdict for the plaintiffs, it was moved to arrest the judgment upon the ground of a misjoinder of counts, the first and second being for "goods sold and delivered by the administratrix after the death of the intestate," where she must sue in her own right, however accountable afterwards for the application of the assets and the third count being upon an account stated with the wife as administratrix, which could only be for debts contracted with the intestate.

Garrow and Marryat shewed cause against the rule. Supposing that the two first counts must necessarily be con

sidered

[ 407 ]

1805.

COWELL and Wife, Administra trix, &c. against WATTS.

[ 408 ]

sidered as laid in the wife's own right, yet if any case can
be put of an account stated with the administratrix, for
money paid by her in her own time as administratrix for
the benefit of the defendant, it will be sufficient to sustain
the judgment; and the case put in Ord v. Fenwick, Execu-
trix, in Error (a), that she may have been compelled to pay
money after the intestate's death, upon an obligation by
him in his lifetime as surety for the defendant to a creditor,
is that case; for that would be a good ground for laying
the promise on an account with her as administratrix, though,
arising in her own time; and the money so recovered would
be assets, in like manner as the produce of goods of the
intestate sold after his death: so that all the counts would
still be consistent. In Henshall v. Roberts (b), it seemed
to be considered that the cause of action in such a count as
the third, would still appear to have arisen in the time of the
administratrix; but there it was only laid to be an account
stated with the plaintiff, executrix, &c. not saying as
executrix. Here, however, all the counts are at least uni-
form upon the face of the record, in counting upon pro-
mises made to the wife as administratrix; though the plain-
tiffs might have been liable to costs if they had failed, be-
cause she might have declared in her own right; but that
cannot affect the question in arrest of judgment.
might sell the goods of the intestate as administratrix, and
the defendant might promise in writing to pay her for them
in that character; and the defendant might also afterwards
account with her in the same character for the value of the
same goods. As in King and others, Executors, &c. v.
Thom (c), where the payee of a bill of exchange indorsed
it to the plaintiffs as executors, it was holden that they might
declare as such in an action against the acceptor. Buller, J.
there said, that the only question was, Whether the sum
when recovered would be assets. So in Petrie and another,
Executors, v. Hannay (d), a count for money had and re-
ceived by the defendant to the use of the executor, as such,

(a) 3 East, 104.

(b) 5 East, 150.

She

(c) Term Rep, 487. (contrary to Betts, Executor, v. Mitchell, to Med. 316, which was not cited there); and vide Cockerill v. Kynaston, 4 Term Rep. 277-281.

was holden to be properly joined with a count for money had and received to the use of the testator.

The Solicitor General and Wood in support of the rule. Though the promises be laid in the two first counts to be made to the wife as administratrix, yet the defendant being stated to have become indebted to her after the death of the intestate for goods sold to him by her, it is clear that she could only sue for the price in her own right, and that the words added, "as administratrix," are mere surplusage, and must be rejected as inconsistent with the facts alleged in those counts. The defendant could not have set off to those counts a debt due to him from the intestate. On the other hand, an account stated with her as administratrix, on which the defendant is charged in the third count, could only be upon matters arising in the lifetime of the intestate; for it were in respect of the goods sold by herself, as suggested, would not be true that the defendant accounted with net as administratrix, but in her own right. The supposed case put in Ord v. Fenwick (a) is only appheable to a count for moucy paid by an executor to the use of the clendant; and the joinder of a count for money had and received to the use of the executor, with one for money had and received to the use of the testator, was approved in Petrie v. Hannay, merely on the ground of practice, with- . out eutering into the reason of it, or considering whether any facts could be combined which would warrant it, like the case suggested in Ord v Fenwick, and which was the real truth of that case. [Lawrence, J. Where is the inconvenience of joining the counts in the present case? In Rogers v. Cook (b), where a count in indebitatus assumpsit to A. as administrator, was holden not to be joinable with a count on an insimul computasset, the only reason assigned is, because the costs to be recovered are entire, and then the plaintiff can never distinguish how much he is to have as administrator, and how much he is to hold as his own. But here no such inconvenience can ensue; for though the administratrix might have sued in the third count on her own light, yet having sued as administratrix, and as the whole

1805.

COWELL and Wife, Administratrix, &c. against WATTS

[ 409 ]

sum