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1798.

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STAINES.

executrix, but it must be remembered that she claims against her own acts.

Le Blanc and Clayton Serjts. in support of the rule. An executor does not take an absolute property in the goods of his teftator, but such an one only as will enable him to fulfil the duties of his office. In this case M.Pherson died, leaving his widow in poffession of his goods in that house in which they had lived: the never removed them, but they continued in the same house until and after her intermarriage with another person. At what period then did the take poffeffion of the goods as her own? An executor may convey to another the goods of his testator for money, and inasmuch as third personscannot know in what mannerthat money is applied, creditors cannot follow the goods. But an executor cannot devise the goods of his teftator, nor are they forfeited by his attainder, nor are they liable to the bankrupt laws. Howard V. Jemmet, '3 Burr. 1369. If an executor pay the debts of his teftator to the amount of the value of the goods, he continues in poffesfion of them as becoming the purchaser. The old form of theaction of trespass by an executor against a person who takes the goods of the teftator, fhews the law; for the gravamen is "the “ delaying of the execution of the will,” F. N. B. 87. E. In Ridler v. Punter, Cro. Eliz. 291. a term in the hands of the husband in right of his wife as administratrix, was held not to be extendible for his debt, though it had continued in his hands and had never been granted; and in Farr v. Newman, though the alteration of property was as great as in this case, yet it was held that the goods were not liable for the husband's debt. Indeed it would be hard if the act of marriage alone were to make the executrix liable to a devastavit. It was laid by the Court in Farr v. Newman, that if the sheriff had any doubt to whom the goods belonged, he should have fummoned a jury de proprietate probandá ; and though it has been contended that the present case differs from that, fince that was an action between two creditors, whereas this is an attempt by the executrix to disaffirm her own acts, yet that argument is answered by the opinion of Lord Kenyon, 4 T. R. 647. viz. that it is too late to say that the poffeffion of goods is in all cafes conclusive evidence of property.

Eyre Ch.J. I was not aware at nifi prius that the case of Farr v. Newman had been decided in fo folemn a manner, though if I had, it would have made no other difference than to make me with that this case Thould be put upon the record. The first ob

jection

jection to the authority of that case, as applying to this, arises from 1798. the form of the action, which was not the same as here; and the second, from the difference of the parties. It is one thing whether - Quick a creditor shall inlift that an executor has been guilty of a de- STAINIS. vastavit, and another, whether the executor shall take advantage ef his own wrong, and justify his own misconduct by saying that the goods are not his but his teftator's. The case of Whale v. Booth and others, cited 4 T. R. 625. is directly in the teeth of Farr v. Newman. I think however that this question may be decided on a principle which will leave the latter cafe altogether untouched, viz. that the executrix had taken the goods to her own use. On that ground I shall have no difficulty in deciding: but we will look further into this question.

Cur, adv. vult. On the next day the opinion of the Court was delivered by

Eyre Ch. J. We have looked into the case of Farr v. Newman and the authorities there cited, and the Court adheres to the opinion, that this nonfuit ought not to be fet aside. We proceed on a ground which does not at all interfere with the case of Farr 1. Newman ; as to which I shall say nothing either one way or the other. The ground of our decision is that originally taken, viz. that a devastavit has been committed by the executrix, who before her marriage had converted the goods. I allow that it would be hard (as it was argued) if the mere act of marriage had worked a devastavit ; and we do not hold that. But when in consequence of the marriage the effects were permitted to come into the hands of the husband and to be used by him, then at least, if not before, a clear devastavit was committed, since that conduct amounted to a conversion of the goods. We think that where the executrix herself or her husband have converted the goods, it does not lie in the mouth of either of them to say that they are not the property of the husband, in a case between the executrix and one of his creditors. We do not say any thing with respect to the question, as between creditors of the original teftator pursuing the aflets with legal diligence, or the executrix in respect of those aflets, and creditors of the executrix or the husband of the executrix, whether they shall or shall not have a preference against a creditor of the executrix. That question will be fit to be considered when it arises, and then we shall decide it, with a proper respect for the case of Farr v. Newman contrasted with the case 4 Term. Rop.

625. *. of Whale v. Booth, 4 Term Rep. 625 n. before Lord Mansfield, V4

with

1798.

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with the other cases to be found in the books upon the subject,
and with the general principles of law relating to the goods of
teftators and inteftates, and the nature of a claim made on their
representatives in respect of those goods. It may be a difficult
question, but it is not now to be touched.
Per Curiam,

Rule discharged.

STAINES.

the case would be varied if A.

June 19th. 7TR 535 8 T R. 5-6.

FARMER V. RUSSELL and Another. 7 Vez.Jun. 473 If A. receive

A SSUMPSIT against the defendants, who were common carriers. money of B to

The first count in the declaration was on a special agreement the use of C., it may be reco- not to deliver the goods in queftion without receiving the money vered by C. in an action for money

for them; the other counts were general, among which was one had and receive for money had and received. At the trial it was proved on the consideration on part of the Plaintiff that he had agreed to carry certain goods which B. paid it called medals, and to deliver them to a person at Portsmouth ; that Quar. Whether they were taken by the carriers on delivery, the meaning of which

term is, that the carriers are to receive 2d. in the pound for comwere a party to mislion, and are not to deliver the goods without receiving payment the contract be:, for them. It appeared, however, that these medals were in fact

counterfeit halfpence sent to Portsmouth for the purpose of being diftributed among the failors: but no other knowledge of the contents of the boxes in which these goods were packed could be brought home to the Defendants, than what might be implied from the circumstance of one of the boxes having been accidentally opened in the presence of a clerk of the Defendants, who faw the counterfeit halfpence (a). The Defendants had received money from the perfon at Portsmouth, and had accounted to the Plaintiff for the whole of it except 131., the subject of the present action. Rooke J., before whom the cause was tried at the Guildhall fittings after Easter term, told the jury, that if the counterfeit halfpence were sent as an imposition on the public, the contract between these parties was illegal, and no action could arise out of it, and that the carriers did not seem to him wholly exempt from crime, as they appeared to be acquainted with the nature of the goods. Accordingly a verdict was found for the Defendants, with leave to move to set it afide, and enter a verdict for the Plaintiffs, if the Court should be of that opinion.

(c) This fact was stated in the report of afterwards expressed by him with respect to Mr. Justice Rooks, but some doubts were its having been proved.

A rule

1798.

FARMER

RUSSELLE

A rule nisi for that purpose having been obtained by Cockell Serjt. on the authority of Tenant v. Elliott, ante, p. 3.

Adair and Shepherd Serjts. now shewed cause. Admitting that there was no direct evidence to prove that the Defendants knew the nature of the goods committed to their care, still in legal construction this was not money received to the use of the Plaintiff. This case may be distinguished from that of Tenant v. Elliott, as the contract was founded not only on malum prohibitum, being contrary to act of parliament, but also on malum in fe, being contrary to common honefty, and a fraud on all mankind; whereas the contract in Tenant v. Elliott was only made illegal by positive law. A Plaintiff must recover on his own strength, not on the innocence of the Defendant. If A. pay money into the hands of B. to be paid to C. for the assassination of a particular person, or as the price of perjury, it will never be contended that C. can recover it: it is not sufficient to thew that B. ought not to keep the money, but it must also be shewn that C. is entitled to receive it. It is to beobferved that in allthe caseswheremoney paid on illegal contracts has been recovered back, theactions have been broughtin disaffirmance of the contract, as in Jaques v. Withy, i H. Bl.65.; whereas here the action is brought in support of the illegal transaction. Neither were the plaintiffs in those cases in pari delicto, whereas here the plaintiff was a principal in the fraud. If this money had been paid into the hands of a banker on a general account, it might not have been competent to him to object to the grounds on which that money was paid: but in the present case the money was paid for the specific purpose of completing the illegal contract, and was received in the course of carrying it into effect.

Cockell Serjt. contra. This might have been a different case if the contract had been executory, for there the Defendant would have stood in the situation of a stake-holder: but here the party who had a right to object to the contract has affirmed it by his own act. Suppose money to be paid into the hands of the plaintiff's clerk, for the Plaintiff's use, thall he be allowed to say “ this

money was paid into my hands for your use, but being the “ confideration of an illegal contract, I shall put it into my own “ pocket.” The authority of Tenant v. Elliott is decisive, and cannot be diftinguished in principle from this case.

EYRE Ch.J. If I could be fatisfied that the Defendant in this case ought to be considered as insuring the performance of an illegal contract, I should be of opinion that a demand necessarily connected with an illegal contract, and tending to facilitate the

execution

execution of it, would be vitiated by that contract; but niy doubt is, whether he can be fo considered. The question therefore is, whether the Defendant is competent to state the tranfaction with the party at Portsmouth, and make any use of it? It seems to me that the Plaintiff's demand arises fimply out of the circumstance of money being put into the Defendant's hands to be delivered to him. This creates an indebitatus, from which an asumpsit in law arises, and on that an action on the case may be maintained. It was on this ground that the Court proceeded in Tenant v. Elliott, and I find myself under a difficulty in making any diftinction between that case and the present. The illicit trading there was as much malum in fe as the transaction here. For it was held in the Exchequer-chamber, in Camden and others V. Anderson (a), that violating a prohibition of a species of commerce in which the interest of the country was concerned, was not merely malum prohibitum but malum in fe, and I am well fatiffied with that decision. Now Tenant v. Elliott had the same foundation as Camden and others v. Anderson, viz. an insurance on trade to the East Indies carried on by a subject of this country in violation of the East India Company's charter. In Tenant v. Elliott, the Court were of opinion that though the insurance was clearly void, yet that the broker into whose hands the money wa paid had nothing to do with the illegality of the contract. The obligation on him arose out of the fact of the money having been received by him for the use of a third person, which created a promise in law to pay; and it was well said by my Brother Buller, that even the man who had paid over money to another's use could not dispute the legality of the original consideration. The case therefore is brought to this, that the money is got into the hands of a person who was not a party to the contract, who has no pretence to retain it, and to whom the law could not give it by rescinding the contract. Though the Court will not suffer a party to demand a sum of money in order to fulfil an illegal contract, yet there is no reason why the money in this case should not be recovered notwithstanding the original contract was void. The difficulty with me is, that the contract with the carrier cannot be connected with the contract between the Plaintiff and the man at Portsmouth, and in that view I think the verdict is not to be supported. However, I incline to a new trial on another ground. It does not clearly appear that the Defendant was not himself a party to the original contract, for

1798.

FARMIR

RUSSELL.

ST.R.576.

(a) Ante, 277.

there

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