The reports of Sir Peyton Ventris Kt., late one of the justices of the Common-pleas in two parts : the first part containing select cases adjudged in the Kings-Bench, in the reign of K. Charles II, with three learned arguments, one in the Kings-Bench, by Sir Francis North, when Attorney General, and two in the Exchequer by Sir Matthew Hale, when Lord Chief Baron : with two tables, one of the cases, and the other of the principal matters : the second part containing choice cases adjudged in the Common-pleas, in the reigns of K. Charles II and K. James II and in the three first years of the reign of His now Majesty K. William and the late Q. Mary, while he was a judge in the said court, with the pleadings to the same : also several cases and pleadings thereupon in the Exchequer-Chamber upon writs of error from the Kings-Bench : together with many remarkable and curious cases in the Court of Chancery : whereto are added three exact tables, one of the cases, the other of the principal matters, and the third of the pleadings : with the allowance and approbation of the Lord Keeper an all the Judges.

Seaman versus Dee.

AN Indebitat' Assumpsit, as Executor of S. was brought against the Defendant by the Plaintiff, as an Attorney of this Court by Original.

The Defendant pleads four Judgments against him; One in an Action of Debt, (upon which the Question was) for Money borrowed by the Testator upon Interest, which Debt with the Interest, at the time of the Action brought, amounted to such a Sum, which was recovered against him: And pleads three Judgments besides, ultra quae he had not to satisfie.

The Plaintiff Demurs, and after being divers times spoken to, the Court Resolved for the Plaintiff.

First, For that Hale said, No Action of Debt lies for the Interest of Money, tho' he which borrows it Promises to pay after the rate of 6 l per Cent. for it; but it is to be recovered by Assumpsit in Damages. So where by Deed the party Covenants or Binds himself to pay the Principal with Interest, the Interest is not to be included with the Principal in an Action of Debt, but shall be turned into Damages, which the Jury is to measure to what the Interest amounts to, which is allowed to be done; tho' indeed the Statutes (which permit the taking of Interest) say,

That Usury is damned, and forbidden by the Law of God. And tho' it was Objected, That the Judgment is but Erroneous, and the Executor liable while Reversed; and it cannot be said, it was the Executor's fault to suffer it: For an Executor may plead a Judg∣ment against him in Debt upon a simple Contract; tho' it could not have been recovered if he had pleaded to the Action, or without his voluntary Consent.

To that Hale said, That Debt upon a Simple Contract lies against an Executor, if he please; nay, it hath been Adjudged, that an Executor may retain for a Debt but to him from the Testator, upon a Simple Contract: But in this Case no Action lies by the Law, nor any admission of the Executor can make it good.

Secondly, It appears, that part of the Interest accrued after the Testator's death, which is the Executors proper Debt, being his own default to suffer the Interest to run on: Then the Action being brought, both for that which is due in the Testator's time, and for that which grew due since, is manifestly Erroneous; and there is nothing in the Defendants Plea to take away the Intendment, that he had Assets to satisfie at the Testator's death.

To the Objection, That the Plaintiff once had abated his Writ; for that he declares by Priviledge, as an Attorney of the Court.

It was Answered, That the alledging of his Profession and Priviledge in the Declaration, was Surplusage and an imperti∣nent Flourish, and that being rejected the Declaration is sufficient upon the Writ; and an Attorney is at election to Sue, either by Original, or by Priviledge. Wherefore the Rule was, that the Plaintiff should have his Judgment.