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1803.

ADAIR

V.

SHAW.

Feme execu

waste before coverture; the

husband shall not be charged at law after

coverture, and equity will not vary this rule of law, on the

ground of his

having received a portion with his wife.

When the husband of a feme covert is charged with waste committed by her previous to the marriage, the charge is simply by the rule of law, which throws upon the husband, during the coverture, all the obligations of the wife; and as he is charged by the rule of law alone, the same trix commits rule should also discharge him. The debt of the wife before coverture shall not be recovered against the husband after coverture, because he is answerable for it only in virtue of the duty imposed on him to discharge all the obligations of the wife: this in some cases is a little against conscience, but then in other cases, the charging the husband with the debt, would be against conscience also; and such having or not being the rule of law, courts of equity have held that they could not establish any rule upon the difference whether the husband had or had not received a portion with his wife, that should bind his conscience in one case more than in the other. This I take to be the meaning of the case of Heard v. Stamford.(a) But where a husband is chargeable, not as husband, but in another character, as administrator, though he was entitled to administration in his character of husband, the court held him responsible, because he took in a character in which any other person taking it would have been chargeable with the debt of the wife. And therefore if the case of Heard v. Stamford and Lord Thomond v. Lord Suffolk (b) be looked into, it will be found that they do not affect the question in this case, where the obligation upon Mr. Shaw arises, not from his character of husband, but from his own acts during the coverture.

There is a variety of instances in courts of law, where, though the most beneficial right of action which accrues to the party is one which would die with the person, yet if

(a) 3 P, Wms. 409. Cas. temp. Talb. 173. (b) 1 P. W ́ms. 462.

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the effect of the act done was, to put into the hands of one party something belonging to the other which was of value,(a) although the most beneficial action die with the person, because founded on a tort, yet the action by which the value of the thing itself might be recovered, would remain. The case of Sir. Henry Sherrington, Sav. 40, has been used to illustrate this. That was an information against the widow and administratrix of Sir H. S. charging that he in his life-time had cut down trees upon the Queen's land it was objected that the action was in the nature of trespass at common law, in which case actio moritur cum persona. But the court said, "In every case where any "price or value was put upon the thing in which the of"fence is committed, if he that committed the offence die, "his executor shall be charged for this offence," (as was the case in that information) "but where the action is for

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damages only in satisfaction of the injury done, the exe"cutor shall not be charged." And this is further illustrated by Lord MANSFIELD in Hambly v. Trott, Cowp. 376, CL as for instance, the executor shall not be chargea"ble for the injury done by his testator in cutting down "another man's trees, but for the benefit arising to the "testator for the value or sale of the trees he shall." This shews clearly what the principle of the law is; that if any man become possessed of the property of another; though he became possessed by wrong, and might during his life be made answerable for the wrong, yet that does not destroy the right which the other party had to the thing itself or the value of it, and he would have a remedy for any thing of that description after the death of the wrong-doer, against his executors. And, in cases of tim

"(a) Vid. Wentw. Off. Ex. 161, from which it appears to have been at one time considered that the executor of an executor who had committed a devastavit should be liable at law, on a principle similar to the one here mentioned, viz. for that by the wrong, the wasting executor had made himself debtor.

P

ber, mines, and the like, equity has in many instances, espe
cially since the case of the Bishop of Winchester v. Knight.
1 P. Wms. 406, obliged a party to account for what had
been so taken. Garth v. Cotton,(a) 1 Ves. 564.

Supposing Shaw himself to have been administrator (and supposing the statute which gives the remedy against the executor of an executor for a devastavit had not been made, for that statute seems to me to have been made principally with a view to creditors) yet his duty, as administrator pendente lite was to hand over the property to the persons entitled to it at the descision of the suit. He was in the nature, and stood in the common case of a stake-holder: if the stake be demanded, and not delivered over after the question is determined, the mode of action necessary to recover back the property so put into the hands of the stake-holder, may in certain cases be gone, and in others not; that depending entirely on the nature of the action necessary to bring; yet I apprehend a court of equity would make the executor answerable for property so put into his testator's hands as a stake-holder.

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In the case of Perkinson v. Gilford, Cro. Car. 539, debt was brought against the executors of a sheriff for money which he had levied under a fi. fa. and had not paid over: the not paying over the money was a misfeasance as well as a nonfeasance: yet it was determined that by the receipt of the money the sheriff became debtor, and that debt might be maintained for it: that is to say, though he was guilty of a breach of his duty as sheriff, and though no action could be maintained for that breach of duty after his death, yet for the money so recovered his executors were chargeable. I mention this to shew that the principle of law is, to charge

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(a) In 1 Dick. 183, this case is published, from Lord HARDWICKE'S M. S.

1803.

ADAIR

υ.

SHAW.

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wherever property bound to a particular duty comes into a person's hands; and the law is even astute to give relief wherever its forms will allow and wherever a court of law fails to give remedy, it fails from a suitable mode of action not being devised: its forms are adapted to the greater number of cases, and in cases where it is defective the legislature has frequently interfered, as in the instance of the remedy given against the executor of an exécutor upon a devastavit.

The demand here, however, is I think supported by a variety of cases in which courts of equity have decided that the executor of a husband possessed of assets in right. of his wife shall be chargeable. The administration having been taken in this instance during coverture, must unquestionably have been with the privity and assent of the husband; he must be taken to have authorised the proceedings; and any dealing of the wife with the assent of the husband, would bind him, and if there were a form of action for it, I cannot see why the executors of the husband would not be chargeable at law. If the wife trade with the assets with his assent, he is chargeable with that dealing, and his executor after his death would be so; because she cannot trade without his assent; and therefore he is chargeable as he would be with any other act of his wife; as, if she received money for him, (having been in the habit of so doing) though it never came into his hands, yet would he be chargeable(a).

The cases in courts of equity on this subject are not very numerous; however, there are some: there is one of which I have found a note of the decree, in 1771; and the form of the decree convinces me that it is the established rule of equity in England to charge the husband as he is

(a) 2 Freem. 178, Seabourn v. Blackstone

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there charged; and from the circumstances of that case, I
have no doubt that it would have been appealed from, if the
point had not been considered as settled law. However, I
shall notice, in their order, the cases which have occurred
to me, and I think we shall find that the practice is too
firmly settled to be shaken. It seems that in some instances
the cases have gone further than what now seems to be the
rule, but Lord TALBOT in Heard v. Stamford, appears to
disapprove of that extension of the rule.

The case which seems to me to shew most clearly what courts of equity thought on this subject, is Sanderson v. Crouch, 2 Vern. 118, in Michaelmas 1689. A man married an administratrix, who had previously wasted part of the assets; a bill was filed against them for a distribution, and the wife died. “Per cur. The husband is not to be "charged further than with what was possessed, or came to "his or his wife's hands after their intermarriage," Now this shews clearly that the understanding of the court was this; with respect to what came to the wife's hands and was wasted by her previous to the marriage, the husband was chargeable as for her debt during the coverture, but not chargeable after her death; but for what came to his or his wife's hands after the marriage, he was chargeable in respect to his possession of it; for the wasting after the marriage must have been the act of the husband; it could only be converted to the use of the husband, and therefore, though in that case the husband was not liable at law in an action in the nature of a devastavit, yet he was held liable in equity.

Bachelor v. Bean, 2 Vern. 61, was decided but a year and an half before Sanderson v. Crouch. It does not appear very clearly what the decision was, but on comparing Sanderson" v. Crouch with it, it will be found that the same sort of deci

1803.

ADAIR

υ.

SHAW.

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