1851. PEARS V. WILSON. judged that the said plaintiff do recover against the said defendant the sum of 431. 7s. 3d. for his debt, together with the costs of suit, amounting to the sum of 6l. 8s. 10d. And it is ordered, that the said defendant do pay the same to the clerk of the court at his office in South Shields, on or before the 12th day of May next. "Given under the seal of the Court this 21st day of April, 1851. "By the Court, Unthank shewed cause (June 14 & 21).-First, assuming the share of the residuary estate not to be a legacy within the 9 & 10 Vict. c. 95, there is no ground for a prohibition after sentence, and where there is no excess of jurisdiction apparent upon the face of the proceedings: Com. Dig. "Prohibition" (D.), Ricketts v. Bodenham (a), Buggin v. Bennett (b), Blacquiere v. Hawkins (c), Argyle v. Hunt (d), Roberts v. Humby (e). The County Courts are, by the 59th section of the 9 & 10 Vict. c. 95, made Courts of record; and by the 111th section, a note of all the plaints is to be entered in a book. If the opinion of the judge was incorrect upon the matter, as the amount exceeds 201., the defendant might have appealed under the 13 & 14 Vict. c. 61. [Parke, B.-The defendant objected at the hearing of the cause, but the judge gave judgment against him. If we were to direct that the defendant should declare in prohibition, the plaintiff would have to shew that the court had jurisdiction. Some entry ought to have been made of (a) 4 A. & E. 433. (d) 1 Str. 187. the proceedings in the County Court, and the judge ought to have taken a note of the objection made by the defendant upon those proceedings. For my part, I think we ought to treat the matter as if the entry had been made.] Secondly. The subject matter of the plaint is a legacy. In Swinburne on Wills, p. 17, it is laid down that "a legacy (otherwise termed by our common lawyers a devise), is a gift left by the deceased, to be paid or performed by the executor or administrator." In one sense of the term, this is a trust; but the executor may be compelled to pay it as an account stated with him. Udall, in support of the rule, was requested by the Court to confine his argument to the last question.-The subjectmatter of the plaintiff's claim is a trust, and not a legacy. The defendant by the will is appointed trustee. The rights of a trustee and of an executor differ. The defendant, though named as executor in the will, need not have acted as such. If the defendant had not administered, and Elstob had been a debtor, and the defendant had sued him, a release by the cestui que trust would not have been any answer to the action. The defendant is, therefore, trustee under the will, and the plaintiff's remedy is in a Court of equity. -Upon the other point he referred to Gould v. Capper (a). Cur. adv. vult. PARKE, B., now said-This was a motion for a prohibition to a judge of a County Court, to restrain him from further proceeding in this case. And the simple question is, whether the share of the residue in certain property, left by the will of the testator, Thew, to the plaintiff's wife, is a legacy, within the true meaning of that term in the 65th section of the 9 & 10 Vict. c. 95. The testator, by his will, after leaving several pecuniary legacies, be (a) 5 East, 345. 1851. PEARS v. WILSON. 1851. PEARS v. WILSON. queathed the residue of his estate, with certain directions. to his executors, as trustees, to pay it to different persons, and, amongst others, to the plaintiff's wife. The testator did not simply direct the executors to pay it to the plaintiff's wife as a legatee, but he left it to the defendant and his co-executor as trustees. We do not think that the substitution of Elstob for Mould by the codicil affects the question, whether Elstob be considered as substituted as trustee or executor, or as both. That fact cannot alter the defendant's position. We have consulted Lord Cranworth upon the question, and he agrees with us in thinking that this is a legacy. In truth, every legacy includes a trust, for in a certain sense it is a trust in the executor to pay it to the legatee. In the present case, there was no necessity for the intervention of a trustee for the execution of the trust, inasmuch as it was a simple direction to hold in trust for a person who was neither an infant nor a feme covert. As we are, therefore, of opinion that this was a legacy within the 65th section of the 9 & 10 Vict. c. 95, the County Court judge had jurisdiction in the matter; and it becomes unnecessary to consider the other point, namely, whether a prohibition can be granted in cases where no defect is apparent upon the face of the proceedings. We may however say, that we think it is incumbent on the judge of a County Court, upon an objection being made to his jurisdiction, to set out the facts upon the proceedings, so that the superior Courts may be enabled to see upon what the judge has proceeded. These Courts are Courts of record; and, unless it appears upon the face of the proceedings that there is a defect of jurisdiction, the subject might be left without redress. In the present case, the rule will be discharged, but without costs, as we have entertained much doubt upon the principal question argued before us. Rule discharged, without costs. 1851. FOSTER, Executor of J. CLARK, v. DAWBER. June 28 & 30. the first count of the declara tion was on a promissory note dated 7th De ASSUMPSIT-The first count of the declaration was on In assumpsit. a promissory note, dated the 7th of December, 1845, made by the defendant, for payment of 5001. and interest, on demand, to Clark, the plaintiff's testator. The second count was on a similar note for 500l. dated the 20th of January, 1846. The third count was for money lent by Clark to the defendant, and for interest, and money due from defendant to Clark on an account stated. cember, 1845, made by the defendant for payment of the 5001. and in terest, on demand, to J. C., the plaintiff's testator. The second count was on a similar note for 5007., dated 20th January, 1846. The third count was for money lent by J. C. to the defendant, and for interest and money due from the defendant to J. C. on an account stated. Pleas, to the first and second counts: first, payment; secondly, that, after the making of the notes, and before demand of the sums therein mentioned, or of any interest thereon, J. Clark exonerated and discharged the defendant from payment of the notes; thirdly, that, after the making of the notes, it was agreed between J. C. and the defendant, that the latter should purchase, with his own money, a piece of paper marked with a 10s. receipt stamp, and should write on it as follows:- Hull, 16 February, 1846. Received of R. Dawber (the defendant) the sum of 1080., being the interest and principal on two notes, dated December, 1845, and January, 1846, and in full of all demands;" and that the defendant should suffer J. C. to sign the same; and that such agreement and purchase of the piece of paper so stamped, and such writing on by defendant, and permitting J. C. to sign the same, should be accepted by J. C. in full satisfaction and discharge of the causes of action.--To the residue of the declaration: fourthly, non-assumpsit; fifthly, payment; sixthly, the Statute of Limitations; and, seventhly, a plea similar to the third. Replications, to the first and fifth pleas, denial of payment; to the second plea, de injuriâ; to the third and seventh pleas, that it was not agreed modo et formâ; to the sixth plea, that the causes of action did accrue within six years. At the trial, it appeared from the defendant's answer to a bill of discovery, that, in the years 1835 and 1842, J. C. lent to the defendant two sums of 5007., upon the security of his promissory notes, payable on demand, with interest. The interest was duly paid, and memoranda thereof indorsed by J. C. on the backs of the notes. At length, the backs of the notes being covered with these memoranda, it was arranged between J. C. and the defendant, that new promissory notes should be substituted, and accordingly the defendant gave J. C. the notes on which this action was brought. In February, 1846, J. C. told the defendant that he intended to give him the 10007. secured by the promissory notes, and he wished to give the defendant a release and discharge for the same and interest due thereon, and he directed the defendant to write out a receipt for such 1000l. and interest, for him, J. C., to sign as a release and discharge; and thereupon the defendant purchased a 10s. receipt stamp, and wrote thereon the receipt mentioned in the third plea; which J. C. signed, and delivered to the defendant, with the express object of releasing him from payment of the 10007, and interest. No interest was afterwards applied for or paid. J. C. subsequently died, having bequeathed the notes in question to the plaintiff. This action was commenced in October, 1850:-Held, first, that the transaction relating to the giving of the receipt did not amount to payment. Secondly, that such transaction was not evidence in support of the third and seventh pleas. Thirdly, that such transaction was evidence in support of the second plea; and that, as the obligation on a bill of exchange might, before it is payable, be discharged by parol, and promissory notes are, by the 3 & 4 Anne, c. 9, placed on the same footing, the second plea was good on motion for judgment non obstante veredicto. Fourthly, that the transaction relating to the receipt was not evidence of part payment of the original debt for money lent, so as to take the case out of the Statute of Limitations; neither did the renewal of the notes render the defendant liable as upon a new promise. VOL. VI. III EXCH. 1851. FOSTER v. DAWBER, Pleas, to the first and second counts: first, payment; secondly, that after the making of the promissory notes, and before any demand of the sums of money therein mentioned, or of either of them, or of any interest thereon, and before any breach of the promises in those counts mentioned or either of them, the said J. Clark, in his lifetime, to wit, &c., exonerated, absolved, and discharged the defendant from, and then waived, performance of the promises therein mentioned, and payment of the said notes respectively, and of the sums of money and interest therein mentioned. Verification.-Thirdly, that after the making of the promissory notes, and in the lifetime of J. Clark, to wit, on &c., it was agreed between J. Clark and the defendant that the defendant should purchase a piece of paper marked with a certain receipt stamp, to wit, a 10s. stamp, to wit, of the value of 10s., with the monies of the defendant, and that he should then fill up and write on the same to the tenor and effect following, that is to say :—“ Hull, 16th February, 1846: Received of Robert Dawber the sum of 10801., being the interest and principal on two notes, dated December, 1845, and January, 1846, and in full of all demands;" and that the defendant should suffer and permit J. Clark to sign the same; and that such agreement and purchase of the said piece of paper so stamped, and such writing on and filling up by the defendant, and suffering and permitting J. Clark to sign the same, should be, and should be accepted and taken by J. Clark, in full satisfaction and discharge of the several causes of action in the introductory part of this plea mentioned.—The plea then averred performance of the agreement in terms, and that J. Clark accepted the same in satisfaction and discharge of the several causes of action. Verification.-To the residue of the declaration the defendant pleaded, fourthly, non assumpsit; fifthly, payment; sixthly, the Statute of Limitations; and seventhly, a plea similar to the third. Replications. To the first and fifth pleas, denial of pay |