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1798.

QUICK

V.

STAINES.

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

1

Le Blanc and Clayton Serjts. in fupport of the rule. An executor does not take an abfolute property in the goods of his teftator, but fuch an one only as will enable him to fulfil the duties of his office. In this cafe M'Pherfon died, leaving his widow in poffeffion of his goods in that houfe in which they had lived: the never removed them, but they continued in the fame houfe until and after her intermarriage with another perfon. At what period then did the take poffeffion of the goods as her own? An executor may convey to another the goods of his teflator for money, and inafinuch as third perfóns cannot know in what manner that money is applied, creditors cannot follow the goods. But an executor cannot devife 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 poffeffion of them as becoming the purchafer. The old form of theaction of trefpafs 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 hufband in right of his wife as adminiftratrix, 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 cafe, yet it was held that the goods were not liable for the hufband's debt. Indeed it would be hard if the act of marriage alone were to make the executrix liable to a devaftavit. It was faid 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 prefent cafe differs from that, fince that was an action between two creditors, whereas this is an attempt by the executrix to difaffirm 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 conclufive evidence of property.

EYRE Ch. J. I was not aware at nifi prius that the cafe 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 should be put upon the record. The firft ob

jection

jection to the authority of that case, as applying to this, arises from the form of the action, which was not the fame as here; and the fecond, from the difference of the parties. It is one thing whether a creditor fhall infift that an executor has been guilty of a devaftavit, and another, whether the executor fhall take advantage of his own wrong, and juftify his own mifconduct by faying that the goods are not his but his teftator's. The cafe 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 ufe. On that ground I fhall have no difficulty in deciding: but we will look further into this question.

1798.

QUICK

V.

STAINIS.

Cur. adv. vult.

On the next day the opinion of the Court was delivered by EYRE Ch. J. We have looked into the cafe of Farr v. Newman and the authorities there cited, and the Court adheres to the opinion, that this nonfuit ought not to be fet afide. We proceed on a ground which does not at all interfere with the cafe of Farr 1. Newman; as to which I fhall fay nothing either one way or the other. The ground of our decifion is that originally taken, viz. that a devaftavit 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 devaftavit; and we do not hold that. But when in confequence of the marriage the effects were permitted to come into the hands of the hufband and to be used by him, then at leaft, if not before, a clear devaftavit was committed, fince that conduct amounted to a converfion 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 fay that they are not the property of the husband, in a cafe between the executrix and one of his creditors. We do not fay any thing with refpect to the question, as between creditors of the original teftator pursuing the affets with legal diligence, or the executrix in respect of those affets, and creditors of the executrix or the husband of the executrix, whether they fhall or fhall not have a preference against a creditor of the executrix. That queftion will be fit to be confidered when it arifes, and then we fhall decide it, with a proper refpect for the cafe of Farr v. Newman contrafted with the cafe 4 Term. Rep. 625.. of Whale v. Booth, 4 Term Rep. 625 n. before Lord Mansfield,

with

U 4

1798.

QUICK

ข.

STAINES.

with the other cafes to be found in the books upon the fubject,
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
queftion, but it is not now to be touched.
Per Curiam,

Rule difcharged.

June 19th.

7 T.R. 535.

8 T R. 5-6.

FARMER V. RUSSELL and Another.

7 Vez.Jun. 473. If A. receive money of B to the ufe of C., it may be recovered by C. in an action for money

had and receiv-
ed, though the

confideration on
which B. paid it
be illegal.
Quar. Whether

ASSUMPSIT against the defendants, who were common carriers. The first count in the declaration was on a fpecial agreement not to deliver the goods in queftion without receiving the money for them; the other counts were general, among which was one for money had and received. At the trial it was proved on the part of the Plaintiff that he had agreed to carry certain goods called medals, and to deliver them to a perfon at Portfmouth; that 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 commiffion, and are not to deliver the goods without receiving payment the contract be for them. It appeared, however, that these medals were in fact

the cafe would be varied if A. were a party to

tween B. and C.?

counterfeit halfpence fent 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 circumftance 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 Portfmouth, and had accounted to the Plaintiff for the whole of it except 137., the subject of the present action. Rooke J., before whom the caufe was tried at the Guildhall fittings after Eafter term, told the jury, that if the counterfeit halfpence were fent as an impofition on the public, the contract between thefe parties was illegal, and no action could arife 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 fet it afide, and enter a verdict for the Plaintiffs, if the Court fhould be of that opinion.

(a) This fact was stated in the report of Mr. Juftice Rooke, but some doubts were

afterwards expreffed by him with respect to its having been proved.

A rule

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

Adair and Shepherd Serjts. now fhewed caufe. Admitting that there was no direct evidence to prove that the Defendants knew the nature of the goods committed to their care, ftill in legal conftruction this was not money received to the use of the Plaintiff. This cafe may be diftinguished 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 affaffination of a particular perfon, or as the price of perjury, it will never be contended that C. can recover it: it is not fufficient to fhew that B. ought not to keep the money, but it muft alfo be fhewn that C. is entitled to receive it. It is to be obferved that in all the cafes where money paid on illegal contracts has been recovered back, the actions have been brought in difaffirmance of the contract, as in Jaques v. Withy, 1 H. Bl.65.; whereas here the action is brought in fupport of the illegal tranfaction. Neither were the Plaintiffs in those cafes 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 cafe the money was paid for the specific purpose of completing the illegal contract, and was received in the courfe of carrying it into effect.

Cockell Serjt. contra. This might have been a different cafe if the contract had been executory, for there the Defendant would have ftood in the fituation of a ftake-holder: but here the party who had a right to object to the contract has affirmed it by his own act. Suppofe money to be paid into the hands of the Plaintiff's clerk, for the Plaintiff's ufe, fhall he be allowed to fay "this "money was paid into my hands for your ufe, but being the "confideration of an illegal contract, I fhall put it into my own "pocket." The authority of Tenant v. Elliott is decifive, and cannot be diftinguished in principle from this cafe.

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

execution

1798.

FARMER

ข.

RUSSELL.

1798.

FARMER

V.

RUSSELL.

8T.R.576.

execution of it, would be vitiated by that contract; but my doubt is, whether he can be fo confidered. The queftion 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 arifes 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 affumpfit in law arifes, and on that an action on the cafe may be maintained. It was on this ground that the Court proceeded in Tenant v. Elliott, and I find myfelf under a difficulty in making any diftinction between that cafe and the prefent. 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. Anderfon (a), that violating a prohibition of a species of commerce in which the intereft of the country was concerned, was not merely malum prohibitum but malum in fe, and I am well fatiffied with that decifion. Now Tenant v. Elliott had the fame foundation as Camden and others v. Anderfon, viz. an infurance on trade to the Eaft Indies carried on by a fubject of this country in violation of the East India Company's charter. In Tenant v. Elliott, the Court were of opinion that though the infurance 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 arofe out of the fact of the money having been received by him for the use of a third person, which created a promife in law to pay; and it was well faid by my Brother Buller, that even the man who had paid over money to another's ufe could not dispute the legality of the original confideration. The cafe therefore is brought to this, that the money is got into the hands of a perfon 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 refcinding the contract. Though the Court will not fuffer a party to demand a fum of money in order to fulfil an illegal contract, yet there is no reason why the money in this cafe fhould 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 fupported. 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 (a) Ante, 277.

there

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