STANWOOD vs. STANWOOD & AL.

balance of the old stock was paid to the holders in money. Joseph Stanwood, the husband, held 27 shares in the old bank; and he subscribed for 14 shares in his own name, and for 5 shares in the name of the plaintiff. The sum of 1300 dollars, balance of his old stock, he received; but declined receiving the sum of 400 dollars, due for the balance of shares standing in the name of Sarah Ela, stating that it was not his money, but his wife's; that he did not want her money, as he had enough of his own, and would leave it in the bank for her. Being asked if it should be passed to his credit, he answered, "Yes, or in any way to make it safe." The money was entered in the books of the bank, and a book, stating the deposit in common form was delivered to him; [* 58 ] and this was the only account he ever had at * the bank. The said Joseph died in February, 1813, leaving an estate worth more than 40,000 dollars, and having made a provision for the plaintiff by his last will. After his death, the defendants, his executors, took the above sum of 400 dollars from the bank, without the plaintiff's consent, and have ever since retained the same; and the plaintiff claims this sum, with interest, in the present action.

In October, 1814, the stock of the bank was reduced forty per cent.; and the defendants received from the bank 200 dollars on account of the said five shares standing in the name of the plaintiff, without her consent. This sum, with interest from the time of its receipt, she also claims.

The defendants having also received the several dividends of profits on those shares, the plaintiff demands the same in the present action, with interest.

Upon the facts agreed, such judgment was to be rendered as in the opinion of the Court either party was entitled to, by the nonsuit of the plaintiff, or the default of the defendants, as the case might be.

Moseley, for the plaintiff.

Webster, for the defendants.

PARKER, C. J., delivered the opinion of the Court.

The case presents very strong evidence of an intention, on the part of the plaintiff's husband, to leave to her management and control the little property she had at the time of the marriage; and to keep it separate from his estate, that she might enjoy it after his decease. All the money claimed in this action, against the executors of her husband, was derived from the shares in the Newburyport bank, which stood in her name previous to the marriage. The question is, whether the intent of the husband can be carried into effect; and to settle this, it must be determined whether the bank shares were choses in action; and if so, whether they, or the money

STANWOOD vs. STANWOOD & AL.

proceeding from them, were reduced to possession by the husband in his lifetime.

No question is made as to the shares which remained in the plaintiff's name. When the new subscription was *made, the husband stated unequivocally his intention [*59 ] not to appropriate those shares to himself, which he

might have done, if he had so chosen. He subscribed in the name of his wife; but the balance in money, which became due in consequence of the reduction of shares, he received sub modo; that is, it was passed to his credit, as a deposit. This transaction, unexplained, would have vested the property in him. But he was anxious not to have it so considered, and explicitly declared that he considered it his wife's property, saying that he had enough of his own. This declaration rebuts the presumption, arising from the credit being given to him; and disaffirms any property in himself arising out of the transaction. Here there is no reducing to possession.

A man shall not be held to do an act, which in some circumstances would be dishonorable, contrary to his own intentions; but the law will assist him in waiving any legal right he may have over the property of another.

Decisions in chancery have supported the interest of the wife in such cases, and there is no reason why courts of law should be less liberal. In the case of Nash vs. Nash (1), the father, after the marriage of his daughter, drew a check in her favor on his banker for £10,000. The banker gave her a promissory note for the whole sum. The husband received £1000 on the note, and the interest of the £9000 during his life. It was holden that, after the death of the husband, the wife was entitled to the note, as a chose in action not reduced to possession, and that it survived to her. Here the money in the hands of the banker became the husband's immediately, if he had chosen. The note given by the banker to the wife, the husband might have sued in his own name. The interest and part of the principal he actually received. This was enough to reduce to possession, but for the intention of the husband, which was manifestly to consider the capital as a fund for his wife.

*The case before us is more favorable for the plaintiff; [* 60 ] for the bank shares were her property before her marriage, and there was an explicit declaration from the husband, that he did not mean to exercise his marital rights over the shares, or the fruits of them.

(1) 2 Mod. 133.

STANWOOD vs. STANWOOD & AL.

As to the sum received by the defendants, as dividends of profits on the shares standing in the plaintiff's name, and that received by them on account of the reduction of the capital stock, the case is still more clear. For the testator himself subscribed the shares in her name; and although he received the dividends in his lifetime, he probably paid them over to her. At any rate, he chose not to mingle this property with his own, for the very purpose, (for there could be no other,) of leaving them hers, when he should die (2).

If creditors had claimed this property, the question might have been difficult; but as the estate of the deceased husband was amply solvent, the law will not defeat his intent to do a charitable, if not a just, act to his wife.

The defendants must be called, and judgment entered for the plaintiff, for the respective sums claimed by her, with interest.

Defendants defaulted (3).

(2) [The shares for which the husband subscribed must be regarded as his property, although the subscription was in the name of his wife. So far the proceeds of the wife's property was reduced to possession.-ED.]

(3) Vide 3 Atk. 376. 20.-2 Vesey, 678.-2 Mod. 217.—2 P. Will. 497.—3 Maule & Selwyn, 393.-9 Vesey, jun., 174.

BENJAMIN MATHER versus ASA GREEN.

The right of action against a sheriff, for taking insufficient bail, coinmences upon the sheriff's return of non est inventus upon the execution against the principal; and the statute of limitations begins to run from that time.

CASE against the defendant, a deputy sheriff of the county of Hancock, for taking insufficient bail. Issue being joined on the statute of limitations, the parties submitted the action to the determination of the Court, upon the following facts.

The plaintiff sued an original writ against one Thomas Wasgatt, which was delivered to the defendant, with special directions to

attach sufficient property, or hold Wasgatt to bail. On [* 61] the 5th of June, 1813, the defendant made his return upon the writ, that he had arrested the body and taken bail. The plaintiff, having obtained judgment in that action, sued out his execution, returnable in September, 1813, and delivered the same to the defendant, who returned it unsatisfied, certifying that he could find neither the body nor property of the debtor. The plaintiff then sued his scire facias against Stephen Higgins, who

MATHER US. Green.

was taken by the defendant Green, as the only bail in the original suit, and, having recovered judgment in April, 1814, against Higgins, delivered his writ of execution to one Langdon, another deputy sheriff of the same county, who, on the 2d day of November following, returned it unsatisfied, being able to find neither the body nor any property of Higgins. The present action was commenced in December, 1819.

French, for the plaintiff, contended that the right of action against the officer did not commence, until the insufficiency of the bail was ascertained by the execution, issued on the scire facias, being returned unsatisfied. It was not until that event that the insuffi ciency of the bail was ascertained; and the creditor is bound to pursue all his other legal remedies, before he can call upon the officer. Upon this ground the plaintiff is not barred by the statute (1).

Saltonstall, for the defendant. In the case of Sparhawk vs. Bartlett (2), it was considered by the Court that the prosecution of bail was no release of the right of action against the sheriff; and it seems to follow, from the whole course of reasoning in the case, that there is no necessity of first prosecuting the bail. And in Young vs. Hosmer (3), it is expressly decided, that it is not necessary to show any proceedings against the bail, in order to prove the insufficiency, especially if but one surety has been taken; but the insufficiency may be proved in any other way by competent evidence That the general statute of limitations may be pleaded in this action, appears from the case of Cæsar vs. Bradford (4).

* In Rice & Al. vs. Hosmer, cited for the plaintiff, and [ * 62 ] exceedingly like the case at bar, it was contended on the part of the defendant, that the statute of limitations began to run from the time of the officer's return upon the original writ. But it was decided that, in an action against the sheriff, for the default of his deputy in taking insufficient bail, the statute of limitations commences only from the return of non est inventus against the principal.

The language of the statute limiting actions against sheriffs to four years (5), is the same as the general statute of limitations (6). By the Court. The question in this case is, At what time did the plaintiff's right of action accrue? It is argued for the plaintiff that his right did not commence, until after the return of non est inventus upon his execution against the bail. But it is our opinion

(1) 12 Mass. Rep. 127. Billings.

(2) 2 Mass. Rep. 188. (5) Stat. 1796, c. 71.

VOL. XVII.

Rice & Al. vs. Hosmer.-9

Mass. Rep. 479, Long vs (4) 13 Mass. Rep. 169.

(3) 11 Mass. Rep 89.
(6) Stat. 1786, c. 52.

49

MATHER US. GREEN.

that the plaintiff might have commenced his action against the defendant immediately after the return of non est inventus upon his execution against the principal debtor. The plaintiff should then have inquired into the sufficiency of the bail. Had he done that, he would have at once ascertained the default of the defendant, in that he had taken but one surety, and his remedy was open to him. More than six years having elapsed from that time to the com mencement of the present suit, the action is barred by the statute. Judgment for the defendant.

JACOB B. WINCHESTER versus REBECCA PATTERSON, Administratrix, &c.

A. ships an adventure on a voyage to a foreign port, and consigns it to the master, upon an agreement that the consignee should receive for freight a certain percentage of the proceeds of the adventure, and the use of the remainder on the homeward voyage. The adventure was sold at the foreign port, but the proceeds were wholly lost on the homeward passage. It was held that, upon the sale of the adventure, the consignee became the absolute debtor of the shipper, and he recovered the amount against the administratrix of the consignee.

ASSUMPSIT for money had and received. The action came before the Court on an agreed statement of facts. [ * 63 ] *William Patterson, the defendant's intestate, being bound on a voyage from Salem to Cayenne, the plaintiff shipped an adventure of soap and candles in the same vessel, which he consigned to the said William; and it was agreed that the consignee should retain a certain stipulated percentage as freight, and the use of the money which the adventure should produce, on the return voyage. The intestate arrived safely with the goods, which he sold, and applied the proceeds to the purchase of other articles on his account. These he shipped on board another vessel for Salem, in which he also took passage himself, having sold at Cayenne the vessel in which he sailed from Salem.

While abroad, he caused insurance to be made at Salem on the goods shipped by him on his return voyage, but not to the value of those goods. The vessel on which he so embarked himself and his goods, was wholly lost, with all her lading, and all the persons on board her, on her passage to Salem. The underwriters paid to the defendant the sum insured as aforesaid.