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1803.

ADAIR

V. SHAW.

in which it was considered by Lord Thurlow, that where an administration was taken out during the coverture, the wife would not be responsible for waste during the coverture : I have looked into the words attributed to Lord THURLOW in that case : I have looked into the cases mentioned as giving authority to that dictum, but I can find none to warrant it. On the contrary, it seems to me that all the cases clearly lay down, that though the waste during coverture is the act of the husband, yet it is an act for which the wife, after the determination of the coverture, is responsible, (a) because, according to the language of the cases, it was her folly to take a husband that would so misconduct himself:(6) indeed, no action would lie against the representatives of the husband for the debt, because he was not the debtor: the judg

(a) Vid. Infra. This point saved by the decree.
(6) In Wentw. Off. Ex.c. 17, p. 205, it is said, “ There may

perhaps be a difference where a woman made executor taketh “ husband after the death of the testator before either proving or

refusing to prove the will, and where she is made executor dur

ing the coverture; as there is in case of a descent of her land “ to the heir of a disseisor ;* for when there is upon her, such a “ state of election, she, marrying before her resolution or deter“ mination, doth upon the matter deliver it into the husband's “ hands; not so where it first findeth and falleth upon her in the “ state of coverture." And to elucidate the difference, the author adds, “ If the husband were indebted to the testator, this making “ of the wife executor is as I take it, a release in law, as “ well as if she were the debtor, but if after the testator's death, " she do marry such a debtor, it is a devastation.” In the same book, 206, and also in Godolph. Orph. Leg. part 2, c. 10. s. 1, it is said, That if administration be taken by the husband in the name of the wife against her consent, she may renounce after his death : that is, as is to be collected from Dyer, 166 b, if she do not intermeddle, the wife, upon whom the right of administration devolved during coverture would seem according to these authorities to be liable for the acts of her husband only in case of administration being taken with her assent given in the first instance, or

* Vid. Co. Lit. 246. a.

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ment must be against the assets of the testator, and the de 1803. vastavit is a mere consequence of that judgment. When I

ADAIR look at the nature of the case of Beynon v. Gollins, I must

SHAW. say that what fell from Lord Thurlow (if indeed he did say what is attributed to him) was delivered without much consideration at the moment: for the great question in that case was, whether the defendant Gollins should be

responsible in respect of acts which he had done affecting the real and not the personal estate. The note in Brown is clearly The case of

Beynon v. Gol. erroneous in many points, and the note in Mr. Dickins's lins, as reportbook(a) is directly contrary, and equally erroneous, ac- ed in 2. Bro.

and 2 Dick. is cording to my recollection of the case.(6) That note is a erroneous.

subsequently by matter in pais, as by her intermeddling; and the principle of liability mentioned in the books (viz. that it was her folly to take a husband who would misconduct himself in respect to the assets) would seem to be applicable only to the case of a wife, on whom the right to the administration devolved before marriage, and when she was in a state to make an election.

(a) 2 Dick. 697, under the name of Beynon v. Gollins.

(6) When this case was first mentioned in argument at the bar, his lordship stated, from his recollection, the true circumstances of the case to have been these : “ Mrs. Beynon was entitled to a large

sum charged on the real and personal estate of her father, part “ of which, viz. a sum of 8001. was settled on the marriage of Mrs.

Beynon, which 8001. was a debt out of the assets of her father: “ the assets were possessed by her husband and her, as administra, “ trix de bonis non of her father, and were administered by the “ husband to every extent except payment of that debt, and then “ he became bankrupt. There was a large real as well as personal

property, and the husband, together with Gollins, who was the “ trustee in Mrs. Beynon's settlement, sold the real estate : and “ the wife and her infant son, after the death of the husband, filed 56 their bill against the purchaser of the real estate to charge it with " this sum of 8001. The bill was dismissed as against all the pur.

chasers, and was retained against Gollins, in consequence of his “ having been a trustee for this 8001, and having concurred in a sale ♡ which had conveyed the real estate, discharged of this demand. " Then Gollins insisted that the personal estate of the father was

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1803.

ADAIR

V SHAW.

perfect authority for charging Mrs. Shaw; but I believe no
such decision took place as that attributed by Mr. Dickens
to Lord Thurlow, and no such dictum was pronounced as
that in Brown. That was in reality the case of a debt, and
the debt was proved under the commission of bankruptcy,
so that it might be considered as rocovered, and the ques-
tion was, whether the wife was discharged by the bank-
ruptcy of the husband; for the action against him was gone,
except so far as there was a debt which might be proved
under the commission ; and having been proved under the
commission, the right of action was satisfied ; that was the
effect of the case, and the present poipt could not have
arisen in it, except by way of argument. Besides, no ac-
tion at law could have been inaintained in that case, aş
it was the case of a legacy. Lord Thurlow could not have
directed an account to be taken against the wife, because,
as I apprehend, the bankruptcy of the husband discharged

“ first answerable for thịs sum of 8001. and that Mrs. Beynon was
“ responsible in the first instance; and the question was whether
“ he could have the benefit of the personal estate, so as to throw
“ the demand against her: the determination of the court was,
“ that he was responsible to the son, but not to her; and therefore
“ the interest of the 8001. was not given to her against Gollins, but
“ he was made to answer for the principal, so far as it had not
.been recovered under the commission as a debt out of the estate
“ of Beynon, the husband ;-for there had been proof of the debt

by Gollins against the estate of the husband, which had been ad-
“ mitted, and a dividend made on it." His lordship observed,
“ That decision goes no further than this, that Gollins could not
“ throw the child on an insolyent fund, but that having concurred in
“ a sale of part of the estate charged, he was bound to answer it:
" the abstract question was not at all before the chancellor.

See Co. Lit. 290. 6. not. 1, where this case is cited by Mr. Butler. upon a discussion how far purchasers are bound to see the applica, țion of the purchase money ; the facts, as far as were necessary to be stated in that point of view correspond with the above.

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1803.

ADAIR

V. Shaw.

the demand: at least it has been so contended; and the debt having been proved against the estate of the husband, it was pro tanto recovered from the husband and could not be demanded against the wife. I therefore think (and the case of Bellew v. Scott, Str. 440, and the cases there cited(a) seem all to shew) that Mrs. Shaw must be held responsible to creditors for waste committed by her husband,

The difficulty which would be in the way of a creditor pro The law has

no form of aeceeding against the husband is, that he could bring no action tion by which at law by which the assets of the husband would be affected; the assets of

the husband of he could bring no action as for a debt of the husband's, a feme executhat is to say, the law gives no form of action in that re- ble for chats

charger spect. If before the statute, the husband had promised by vastavit com

mitted by him parol to pay the debt, I apprehend an action would have during the colain on that, because then a new form of action would be verture. given; the statute now requires the promise to be in writing, but previous to the statute, a mere parol promise would have been sufficient, because there was a sufficient consideration for it; however that is not the nature of the present demand: the demand now made is made by the personal representative, and by the persons who are entitled as cestui que trusts under the will of Charles Crymble; and it is made, with respect to the latter, in the only way that it could be made, in a court of equity, where the only remedy is against the trustees of those assets,

a

But it is objected that a court of equity cannot alter the But equity principles whịch govern in a court of law, and that if

will relieve in

such case, on person is not chargeable by the common law, he is not the principle chargeable in a court of equity. That is going too far: that the pro

into for that position would put an end to all executions of trust, the husband's and to all proceedings founded upon a breach of trust; bound by a matters which are not cognizable at law, but are cognizable trust.

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V.

1803, in cquity. The only thing to be inquired in a court of ADAIR

equity is, whether the property bound by the trust, has

come to the hands of persons who were either bound to exeSHAW.

cute the trust, or to preserve the property for the persons entitled to it; and the whole jurisdiction of courts of equity in the administration of assets is founded on the principle, that it is the duty of the court to enforce the execution of trusts, and that the executor or administrator who has the property in his hands, is bound to apply that property in the payment of debts and legacies, and to apply the surplus according to the will, or, in case of intestacy, according to the statute of distributions. The sole ground on which courts of equity proceed in cases of this kind is the execution of a trust: and if we advert to the cases on the subject, we shall find that trusts are enforced, not only

against those persons who rightfully are possessed of the All persons trust property as trustees, but also against all persons who coming into

come into possession of the property bound by the trust with possession of property bound notice of the trust; and whoever so comes into possession is by a trust with considered as bound, with respect to that special property, notice of the trust, are to the execution of the trust. chargeable in equity as trus

The law has nothing contrary to this in the administraIf the assets had remained tion of assets. In the present case, if the property (such as in the hands of it was, consisting of bonds, &c.) which was handed over to the husband,

Charles Crymble the younger, had remained in the hands of to his executors in specie,

Francis Shaw at the time of his death, and were now in an action at specie, in the hands of his executor, the plaintiff could bring law might have been main.

an action of detinue or trover; but in consequence of the tained for thein.

property having been converted in the life-time of Shaw, the mode of action at law is wanting; the law has not provided a form of action by which the right, which the law ac, knowledges, can be enforced.

tees.

and had gone

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