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1803

ADAIR

SHAW.

sion was made in both cases. Norton v. Sprigg, 1 Vern. 309; Hil. 1684, This is a very short and confused note. On exceptions to the master's report, the question was, how far the second husband should be charged in his own estate for a devastavit committed by his wife and her first husband. The court said, “ Where there is a bond, there is a lien 4 by deed, and so the second husband bound: but where:

there is barely a breach of trust or debt by simple contract, " there in equity, the plaintiff ought to follow the estate « of the wife in the hands of the executor of the first “ husband.” It is difficult to make out the precise meaning of this case; but it should seem to be this: it was conceived that the second husband should be relieved out of the assets of the first husband; that is, if the first husband possessed himself of the assets of the testator, the second husband, who was chargeable with the debts of the wife, was entitled to be relieved out of the assets of the first husband, that first husband having possessed himself of that which was not given to him by the marriage, and of which he had no other right to possess himself, than for the purpose of pro, tecting himself against the demands of the creditors of the testator, a demand which he was liable to as husband of the administratix. It seems that in that case there was a right in the second husband to redeem, by following the assets of the first husband to recover what had been receive ed by him. Howeyer, nothing can be inferred from that case except that this was the understanding of the court; which we may guess also from the note on this case in 1 Eq. Abr. 60, referring to Gilpin y. Smith, which determines that if there be no assets of the first husband, the second husband must pay it as the debt of the wife ; which implies that if there were assets of the first husband, the second hus. band was entitled to be relieved out of them,

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Gilpin v. Smith, 1 Ch. Cas. 82, does not seem to warrant what is here said. It is there held that when a wife after the death of her first husband entered and took the profits (of lands settled for the payment of debts) and married again, and she and the second husband continued to take the profits, and he dying, she married a third husband who also continued to take the profits, the third husband was bound to answer not only for the profits received by himself and his wife when sole, but also for what was received by the second husband. But in the argument in that case Maynard says, “ both in law and equity Smith and his wife were "answerable for the profits taken by the wife and after by “ the second husband; as if feme, tenant for life, marry, " and the husband doth waste and dies, waste lies against " the wife;" Now, waste does not in that case lie at law against the executor of the husband; but according to Sherrington's case and the other cases, if the waste had been of a nature to be profitable, the assets of the second husband would have been answerable, and reasonably so, in relief of the wife and the third husband ; though the wife and the third husband would be primâ facie liable to creditors; and those cases go on that ground.

Powell v. Bell, East. 1706 ; 1 Eq. Abr. 61, and the same case in Prec. Ch. 255.(a) There an administratrix, having wasted great part of the estate before her second marriage, and the bill for an account of the estate being brought against her husband after her death, the decree was that an account

(a) His lordship here observed, " it is supposed that Mr. Pooley 16 who was the collector of the cases in Prec. Chan. was also the "compiler of the first part of Eq. Cas. Abr. and certainly the cases

are generally, as well as in this instance, verbatim in one book

and in the other." Vid. Preface to Prec. Chan. 2d Edit. Lond, 1786.

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1803.

ADAIR

V. Shaw.

should be taken of what had come to the hands of the administratrix before her second marriage, and that plaintiff should have satisfaction against the defendant absolutely, for so much as came to his hands after the marriage, and for what came to her hands before her second marriage, to have satisfaction against him, so far as he had any estate of his wife's. This, from all the cases I understand to mean, so far as he had any estate in character of administrator to his wife.

· Upwell v. Halsey, in 1720, 1 P. Wms. 651, before the master of the rolls. A. gave a personal property to his *wife for life, remainder to his sister, and appointed his wife executrix. The wife married the defendant, and died. It was decreed that the defendant should account for what came into his hands. There the wife was entitled during her life, and she having possessed the property and retained the surplus in her hands as executrix, was a trustee to pay herself the interest during her life, and to preserve the principal for her sister : the husband was decreed to account for so much as came to his hands, but was not made accountable for what she might have wasted before marriage : it was considered that the money being trust money, the marriage was not a gift of it, and he was held bound therefore by the same trust that she was,

There is a case of Pagett v. Hoskins, Prec. Ch. 431,(a) which proceeds on the same principle. Any specific assets of the wife's testator may be followed into the hands of the husband after her death, and so (as in that case) though not in specie, if the husband had notice that they were the goods of the testator.

(a) Vid. Gilb. Lex. Prai. 147 ; Gilb. Egi Cat. 335. S. Ca

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The case which I alluded to as having been more recently determined, was that of Humphry Sturt against Harvey. The decision there. I take to have been considered as the course of the court established in a number of cases : I have a very slight recollection of the case itself, and do not think. it was ever made a matter of discussion. Mr. Harvey had married the mother of Mrs. Sturt: Mr. Sturt got a large fortune with his wife, and filed a bill to obtain different properties out of the hands of Harvey. The cause came on 22d Feb. 1771, and part of the decree was, that Harvey should account for such part of the personal estate of his wife's former husband as had come to the hands of his wife before her marriage with him, or to his or his wife's hands since; and that he should be answerable for what had come to their or either of their hands since the marriage ; and, for what had come to his wife's hands before, that he should be answerable out of her assets if he admitted any, and if not that an account of them should be taken. So that the rule in Sanderson v. Crouch there was proceeded on, and the same sort of decree made; and from the manner in which the decree is expressed, I am convinced that it was considered as the settled rule in Chancery at that time. That decree was made in the time of Lord BATHURST, at a time when the present Lords Rosslyn and Thurlow were generally opposed to each other, who would not have passed any point that could be contended; and it was impossible fowany two families to be more disposed to litigation than the parties in that cause. It comes to the same thing as the other cases; that goods which a wife takes in auter droit are not given by the marriage to the husband, and that he taking them, takes them subject to the trust, to which they were subject in the hands of the wife.

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The result of all the cases is, that where a husband is chargeable by the rule of law, the same rule shall discharge

1803.

ADAIR

SHAW.

him, and the court will not inquire whether or not he ob-
tained any fortune with the wife: but where he is chargeable
by his own act during the covertare, he shall be chargeable
as if he had been acting in his own right, and the conscience
of the wife being bound to execute the trust, his conscience
also shall be bound. It is not necessary to refer to cases
for the purpose of shewing that where a person is a party to
a transaction which is in its nature a breach of trust, he can
derive no benefit from it, and that if he gets possession of
the property he is responsible: as in Crane v. Drake, 2
616, where a person dealt with an executor for the assets,
and the court considered him as consenting to and contri.
ving a devastavit, and would not allow him to retain the as
sets so obtained.

Now, if the assets of Charles Crymble the elder had remained in the hands of Shaw it would be impossible to doubt that the executor of Shaw would be answerable for that property. But it is said that, having handed over the

property to Charles Crymble the younger, it is a case of a Trustees and mere tort, or a mere breach of trust. Now, it has been the their represen constant habit of courts of equity to charge persons in the tatives chargeable in equity

characters of trustees with the consequence of a breach of for a breach of trust, though

trust, and to charge their representatives also, whether they no benefit de. derive benefit from the breach of trust or not; as, where rived froin it.

there arettwo trustees and one does not receive the money, but acts in such a way as makes him liable for the acts of the other : such is the case of Scurfield v. Howes, 3 Bro. Ch. Cas. 91—there Barnardiston never received the money; his assets never were benefited; but Howes, the other trustee having become insolvent, he was charged with the money actually possessed by Howes; because the money is, in the judgment of the court, in the hands of both the trustees. Now here, the money came into the hands of (I will say) Mr. and Mrs. Shaw, (and this is perhaps to say a great deal

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