Gorman, Executor, v Fitzgerald

• Jurisdiction: Ireland
• Judgment Date: 09 May 1851
• Date: 09 May 1851
• Court: Exchequer (Ireland)

Exchequer.

GORMAN, Executor,

and

FITZGERALD.

Crawford v. WhittalENR 1 Doug. 4.

Wallis v. Lewis 2 Ld. Ray. 1215.

Partridge v. StrangeENR 1 Plow. 81.

Hornsey v. DymockeENR 1 Vent. 119.

Aspinall v. WakeENR 10 Bing. 51.

Large v. AtwoodHRC 1 D. & R. 551.

Holman v. ChuteENR Cro. Jac. 685.

Needham v. Corke 1 Free. 538.

Trueman v. HurstENR 1 T. R. 42.

Blakesley v. SmallwoodUNK 10 Jur. 470.

Schofield v. Corbett 6 N. & M. 527.

Jones v. Jones 8 B. Moo. 146.

Jobson v. ForsterENR 1 B. & Ad. 6.

Dowbiggin v. HarrisonENR 9 B. & C. 666.

Hollis v. SmithENR 10 East, 293.

Cook v. LoxleyENR 5 T. R. 4.

Phipps v. Sculthorpe 1 B. & A;/ 52.

Peacock v. HarrisENR 10 East, 104.

Sharpe v. Shearman 12 Ir. Law Rep. 437.

Ord v. FenwickENR 3 East, 104.

Lansfield v. Allen 1 Bl. N. S. 592.

Webb v. CowdellENR 14 M. & W. 820.

Corner v. ShewENR 4 M. & W. 163.

Cowell v. WattsENR 6 East, 405.

Clarke v. Webb 4 Tyr. 673.

Heath v. ChiltonENR 12 M. & W. 637.

COMMON LAW REPORTS. 359 E. T. 1851. Exchequer. GORMAN, Executor, .v. FITZGERALD. (Exchequer.) ÄSSUMPSIT, by the plaintiff; as executor of the last will of F. Mitchell, deceased. First count-" For that whereas the defendant, on &c., at &c., " was indebted to the plaintiff as such executor, &c., in the sum of "21, for the use and occupation of certain lands of the plaintiff as " such executor," &c. Second count-An account stated with the plaintiff as executor, and promise and breach to the plaintiff as executor. Demurrer special for want of profert, and general for misjoinder. E. Sullivan, in support of the declaration. Where an executor has the option of declaring as such, or in his personal capacity, he need not make profert: Bac. Ab. Exor., 0, citing Crawford v. Whittal (a); Com. Dig. Pleader 2, D 1, citing Wallis v. Lewis (b):-" But when the executor brings an action " which will be in his own right, though he name himself executor, " he need not make profert." The naming himself executor in such case is but surplusage : Partridge v. Strange (c); Hornsey v. Dymocke (d); Aspinall v. Wake (e); Large v. Atwood (f).-[PrGoT, C. B. That case went on a different principle, viz., that the description of the person does not decide the character in which he sues.]-Williams' Exors., p. 1594 ; 2 Stark. p. 445. The two counts sued on here are, the first by the executor for use and occupation, and the second on an account stated with the executor. In the first case (a) 1 Doug. 4. (b) 2 Ld. Ray. 1215. (c) 1 Plow. 81. (d) 1 Vent. 119. (e) 10 Bing. 51. (f) 1 D. & R. 551. 360 COMMON LAW REPORTS. the contract is with the executor himself, and he may bring debt for the rent in the debet et detinet : Holman v. Chute (a). As to the account stated with him as executor, he has the option of suing in his own right, the accounting itself giving the cause of action : Needham v. Corke (b); Trueman...