Then the award is bad and inconsistent; the arbitrator has found for the defendant on both issues raised on the count for money paid, therefore, he has found that there was a set-off: but it does not appear that the defendant has had any benefit from that finding. Then, on the other counts, the arbitrator finds that there was no set-off, and that the plaintiff was not indebted to the defendant. The two findings are incongruous. But this uncertainty is important, because the costs are to abide the event; and it is impossible to say how that event has been determined, nor how the Master can tell what witnesses to allow to the parties.

[LORD DENMAN, C.J.-I do not see how that difficulty is to be got over.]

In Cousins v. Paddon (7), there is a mode pointed out according to which the award should have been framed. In re Ryder and Fisher (8), was referred to. Cur, adv. vult. The judgment of the Court was delivered by

LORD DENMAN, C.J.-[After stating the pleadings and the award, he continued]A rule nisi has been obtained to set aside this award, on the ground, that the issue on the plea of set-off is not divisible ; and we are of opinion it is not. The defendant, by that plea, admits something to be due on each count of the declaration, and undertakes to prove a demand exceeding the aggregate amount of the sums so due. The issue under nil debet is not, whether that sum is due to the plaintiff, but whether a sum is due from him exceeding or equal to the aggregate amount of his demand; and unless such a sum be due, the plea would be no bar to the action, although the evidence might reduce the damages. The arbitrator has evidently so treated the issue; for although by the verdict on the count for money paid, he finds some set-off was proved, yet, by the rest of the verdict, he finds it does not equal the aggregate demands of the plaintiff on the other counts; and in this he is

(7) 2 Cr. M. & R. 547; s. c. 5 Law J. Rep. (N.S.) Exch. 49. See also Probert v. Phillips, 2 Mee. & Wels. 40; s. c. 6 Law J. Rep. (N.s.) Exch.

10.

(8) 3 Bing. N.C. 874.

quite right, otherwise, if the plea were to be held divisible, as applicable to each count separately, this absurdity would follow, that the demand of the plaintiff on each count taken by itself, might be less than the set-off, so that the defendant would be entitled to a verdict on the whole of that plea taken distributively, yet the aggregate amount of the plaintiff's demand might far exceed the set-off, and so the set-off would be no bar to the action. For these reasons, we are of opinion, that as the set-off is applied to the whole, the issue on it is a single one, and that the plaintiff is entitled to a verdict, unless the defendant prove a set-off exceeding or equalling the whole of the plaintiff's aggregate demand, without regard to the particular amount under each count, or to any other issue on the record applying only to the particular count. And this view of the question will not prevent the defendant from availing himself of any other defence stated on the record, such as payment, or the Statute of Limitations, by which he would be able so to reduce the plaintiff's aggregate demand, as that the set-off may cover the remainder; for, to that extent, the plea of set-off is divisible; or rather it must be found wholly for the defendant, and not partly for him, and partly for the plaintiff: and there is no absurdity in this, for as the precise sums, both in the declaration and in the plea, are immaterial, it signifies not whether the plaintiff's demand be reduced by failure of proof, or by the establishing of one or more of the other pleas on the record, independent of the plea of set-off. If, by either means, the plaintiff's demand ultimately established falls short of the defendant's demand, the issue on the plea of set-off ought to be found wholly for the defendant, so that in no case can the plea of set-off be properly said to be divisible. But although we think the arbitrator was mistaken in his view of the effect of the pleadings, yet we are of opinion that the party in whose favour that mistake has been made, that is, the defendant, cannot avail himself of it to set aside the award. We have no power to correct the award, and therefore, if the plaintiff wishes it, this rule must be made absolute. If he is content to pay the costs of that issue, so wrongly found for

1837.

May 3.

GLAHOLME v. ROWNTREE AND
ANOTHER, EXECUTORS OF
JOHN CLARK.

Executor-Assets-Deposit of Policy. A party deposited a policy of insurance to secure a sum of money advanced, and died leaving the depositary one of his executors. The latter applied to the insurance company for payment, and, on their refusing to pay without a discharge from the executors, signed a receipt in his character as executor, and received the proceeds of the policy:Held, that so far as the amount of his lien extended, the money received from the office was not assets in the hands of the executors.

(9) 3 B. & Ad. 234.

• This and several of the following cases properly belong to the preceding volume, but it has been impossible to publish them before the present time.

At the trial, before Tindal, C.J. at the Summer Assizes for Newcastle, in 1835, the following facts were proved. In 1832, the testator effected an insurance for 2001. on his life, with the Leeds and Yorkshire Insurance Company, and deposited the policy with a creditor named Price, to secure a small debt. This debt the defendant Rowntree paid off by his desire, and received the policy as security for the sum he so paid, and also to secure future advances; and the testator was ultimately indebted to him in the sum of 1867. Clark was sent to prison, and died there in 1834, having appointed the defendants his executors. A short time before his death he was applied to by Rowntree to execute an assignment of the policy, but refused to do so. Upon his death Rowntree applied to the insurance office for the money insured upon Clark's life, but they declined paying, unless he would give them a discharge in his character of executor, and the money was paid to the defendants as executors of Clark, the defendant Rowntree signing as Clark's executor, under protest. He kept the money in satisfaction of his debt, and to pay the funeral expenses. It was contended, that this was legal assets, and could not be retained against the judgment debt. The learned Judge directed a verdict for the plaintiff, but gave the defendants leave to move to enter a nonsuit. In the Michaelmas term following

Cresswell obtained a rule nisi accordingly, against which

Alexander and Bliss now shewed cause. -The proceeds of this policy were legal assets available in the hands of the executors in satisfaction of the testator's debts, and therefore the defendants were bound to apply it in payment of the plaintiff's debt, which was a judgment debt. The defendant Rowntree was not the assignee of the policy; the testator had refused to give him the legal title to it. He held it as a pledge, and, in his character of executor, has been enabled to convert it into money. That money he has received as executor, and is bound to apply it to the

payment of the testator's debts-Harecourt v. Wrexham (1). It is true, that when an executor redeems goods pledged by the testator with his own money, he is chargeable with the surplus only as assets-2 Williams on Executors, 1015; but if he redeems it with the money of the estate, the chattel is assets in the hands of the executor. Here, in effect, the redemption was with the money belonging to the estate. In 20 Hen. 7. this case is stated by Frowicke, Chief Justice of the Common Pleas : "If this testator was bound in 100l. to pay 201. by a certain day, and die before that day, and the executors could not raise the 201. from the testator's goods, in consequence of the shortness of the time, if they pay the 201. in salvation of the 100%. out of their own property, they shall retain so much out of the testator's goods when they come to their hands." The defendant can only claim to hold this money by way of retainer, but that is not available against the plaintiff's debt; or by way of assignment, and Rowntree was not the legal assignee, whatever equitable right he might have had to it; or, lastly, by way of deposit or pledge, and that was the real nature of his interest. But to that it is answered, that, under the circumstances of this case, when redeemed, it became part of the testator's estate. Again, the lien was on the policy, not on the proceeds; and he lost his lien when he gave up the possession of the policy to the company-Boardman v. Sill, (2), Jacobs v. Latour (3). He received the proceeds in his character of executor, in which name he signed the receipt. His protest cannot alter the effect of the admission contained in the receipt-Quick v. Staines (4). This lien, if it afford a defence to Rowntree, can be none to the other defendant; and as they both received the proceeds of the policy, the co-executor must be responsible. Even if the sum due to Rowntree be not recoverable, it did not exhaust the whole of the insurance money, and there is a portion due beyond the sum paid into court.

Cresswell, in support of the rule, having

stated that this last point was not made at the trial, was stopped by the Court.

LORD DENMAN, C.J.-That disposes of the only difficulty in the case. It is clear that the policy was originally deposited with Price, and the defendant Rowntree was requested to pay him off, and to take the policy as a security for re-payment of that debt, and of farther advances. He did so; and on the testator's death goes to the office with the policy, and requires to be paid. The insurance company desire that he will sign the receipt as executor. Now, in some form he was bound to give a discharge to the office, and the form which will alone exonerate them is in his character of executor. The question is, whether, when he has done so, the other creditors, are to take advantage of that signature to deprive him of his property. The word "retain," in the case cited from Hen. 7, cannot be taken in the strict technical sense, but only to signify that the executor is to keep the chattel which he has redeemed. Here the executor has obtained the money, to which he had a right.

LITTLEDALE, J.-The executor has a right to this money, in payment of his own money. I do not consider this in the light of a retainer. [His Lordship here stated the facts.] No doubt this policy, at the time of Clark's death, was legal assets; but see how it stood. If Rowntree, or any other person, had had any interest in it, no matter whether it had been legally assigned or not-(for it is not like a bill of exchange, which must be indorsed), the office would have required all parties to join in the discharge. Assuming that it had been assigned to Rowntree as a stranger to the estate, and there had been no dispute, but the executors had found that the debt was not equal to the amount of the policy, the creditor would have gone to the office, and the company would have required a discharge from the executor as well as from the creditor. They would have left the office, the latter having his money in his hands, and the executor taking the surplus. If there was only an equitable deposit, the executor could not have obtained the money unless the creditor joined with him in the application; the office would not have paid the amount to

the one or the other alone. It was the same in the present case. It is said, that the office having refused to pay unless the defendant signed as executor, and he having done so, he has done something in point of form by which he has lost his right; but that cannot deprive him of his lien, and his rights cannot be varied by that act. He signed, indeed, under protest, but the office, notwithstanding, thought fit to pay him, and the payment was made by the office to the person properly entitled. It appears to me, that though the policy may be properly considered as assets, it is only for the surplus after discharging the defendant's lien.

PATTESON, J.-This was an action against two persons as executors of Clark, one of whom was his creditor, having a policy of insurance deposited with him, not for a by-gone debt, but for a debt then paid off, and for money advanced on the particular security. So much for the honesty of the present claim. The defendant had advanced the money on the credit of this very policy. It is said that there is no lien on the proceeds, but only on the paper. I cannot understand that argument. Every one who has a lien on a policy of insurance has a lien on the proceeds. Then it is contended, that having been appointed an executor by the depositor, he is to lose the benefit of his security; and it is said, that inasmuch as there was no legal assignment, he could not receive the proceeds for himself, but only in his character of executor. It is also urged, that his claim does not justify the other executor. But he has only joined to enable the party entitled to get the proceeds of his lien, and the estate to get the benefit of the surplus. The defendant having signed the receipt as executor, cannot defeat his right to the amount of the lien upon it. This policy never was assets in the hands of the executors; and this is no new doctrine, but it is consistent with all the authorities. The fallacy, on the part of the plaintiff, is in treating the word "retain," in the case referred to, as meaning the retaining by the executor out of the assets; it means nothing more than keep. It is clear, if an executor pay off the amount of the debt, he is entitled to keep and NEW SERIES, VII.—Q.B.

retain the pawn as his own goods, not in the sense of retaining as executor, but because, in effect, he has got, as it were, a transfer of the goods: that would be the effect if no money were advanced from the testator's estate. Here, no money was advanced out of the estate, because the receipt by the executors was only a form necessary for the obtaining of the money from the insurance office. For the surplus, indeed, over the amount of the lien, the executors would be liable.

COLERIDGE, J.-It would be a great disgrace to our law, if the form necessary to be gone through to enable the party to obtain the money, were to deprive him of his right. The defendant Rowntree was bound to sign as executor, and did so under protest. He could not obtain the proceeds unless he so signed the receipt. Now, to what extent is the executor liable? Only for what the chattel is worth, after payment of the charge that is upon it. The case is the same as if there had been two persons, Rowntree the creditor, and Rowntree the executor, when there could have been no doubt.

1837.

}

Rule absolute.

BOWEN V. JENKIN.

May 31. J Pleading-New Assignment-Common. Case for disturbing the plaintiff's right of common by putting on cattle. Plea, that the defendant had a right of common of pasture in the locus in quo, and put his commonable cattle levant and couchant thereon, which were the cattle in the declaration mentioned. Replication, that all the cattle in the declaration mentioned were not the defendant's commonable cattle levant and couchant:-Held, that under this replication the plaintiff was not at liberty to prove that the defendant had surcharged his right of

common.

Case. The plaintiff, in his declaration, claimed a right of common of pasture for sheep and all his commonable cattle levant and couchant, on a common called Golden Mill Common, and complained that the defendant, on the 1st of January 1832, and on divers other days and times, wrong

E

fully and unjustly put divers, to wit, five horses, five mares, five geldings, five cows, five steers, five heifers, five calves, and fifty sheep upon the said common, and there kept them, whereby the plaintiff, on those several days and times, was greatly disturbed in the enjoyment of his said common of pasture there.

Pleas-First, traversing the plaintiff's right of common, and issue thereon ;-second, that the defendant was possessed of certain land, and for sixty years before the commencement of this suit, had a right of common of pasture, for all his commonable cattle levant and couchant, in and upon the said land; and the defendant being so possessed and entitled to the said right of common aforesaid, at the several times when, &c., put the said cattle in the declaration mentioned, being the said defendant's own commonable cattle levant and couchant in and upon the said land, to use the said common of pasture, and kept them there for the said space of time in the declaration mentioned, quæ est eadem. Verification.

Replication-That all the said cattle, in the said declaration mentioned, at the said several times when, &c., were not the said defendant's own commonable cattle levant and couchant in and upon the said land of the defendant, modo et formá; concluding to the country.

At the trial, before Patteson, J., at the Glamorganshire Summer Assizes, 1835, the plaintiff's counsel opened a case of surcharge by the defendant, admitting that the defendant had a right of common for some cattle on the locus in quo. It was thereupon contended, on the part of the defendant, that this question was not admissible on these pleadings;-that there ought to have been a new assignment, or the plaintiff ought to have declared on a surcharge. Ellis v. Rowles (1), as cited in Rosc. Evid. 418, was referred to; and the learned Judge being of this opinion, directed a verdict to be entered for the plaintiff on the first issue, and for the defendant on the second. In the ensuing Michaelmas term

J. Evans obtained a rule nisi for a new trial, against which, cause was now shewn by(1) Willes, 638.

E. V. Williams for the defendant.-The direction in this case was right. In Roscoe on Evidence, it is said, that under this replication the plaintiff will fail, if it appear that some of the cattle were the defendant's commonable cattle levant and couchant, for the number mentioned in the declaration is immaterial-1 Saund. 346, e. (n), Ellis v. Romles. Certainly in the note to Mellor v. Spateman, in 1 Saund. 346, Ellis v. Rowles is cited as an authority for the position that the number mentioned in the declaration is not material, whereas that case does not decide any such point. Nevertheless the proposition is correct. The gist of the action is the disturbance of the common, and the putting on of the defendant's cattle is only the mode of creating the disturbance. If the real injury, of which the plaintiff complains, be, that the defendant has abused his own right, it should be so set forth in the pleadings. If the plea of the defendant does not meet the whole of the grievance complained of, the plaintiff ought to new assign, As in trespass, where the defendant shews a sufficient excuse, but the plaintiff's real complaint is, that the defendant abused his authority, there must be a new assignment. Monprivatt v. Smith (2), Lambert v. Hodgson (3), 1 W. Saund. 299, a; though, where there are distinct trespasses, there must be a justification pleaded to each. So, where several trespasses are complained of, and the defendant pleads a licence, he must prove a licence for each trespassBarnes v. Hunt (4), which will be cited on the other side. But it is not applicable. Here the plea is co-extensive with the grievance. The defence is, that the defendant has a right of common for his cattle on the locus in quo, and the plaintiff traverses that right. The defendant need only prove every material allegation in his plea, and he does so when he proves his right of common over it. That would be the case if there had been a general replication of de injuria, and though, in the present case, the words are not those of such a replication, the effect is the same. It is said, that the word "all" is introduced

(2) 2 Campb. 175.

(3) 1 Bing. 317; s. c. 1 Law J. Rep. C.P. 114. (4) 11 East, 451.