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1804. owner with the consent of the true owner? if it was, the Joy

case is within the meaning of the statute. Now here, from

the death of William, the property was in that condition CAMPBELL. that it was perfectly competent to Thomas to acknowledge

that he was a trustee : he did so acknowledge; and his possession was according to the right of property, qualified by the right of others.

That credit has That credit is given on the property is a circumstance been given on the faith of the

which might belong to a variety of other cases not within property does the statute. In Marshal's case for instance, the creditor who not bring the case within saw the plate could not know that it was settled on the marthe act.

riage : but possession was according to ownership; he was the rightful owner, and therefore the rule did not extend to that case. Here, for four years after the death of William, Thomas treated this as the estate of William: he held it indeed in his own possession, but that possession was according to the ownership, and therefore it shall not give a right to the assignees, which otherwise would not be in them. I therefore think with respect to this property, that the right is with the creditors and legatees.

The effect of

And here I would observe that the effect of this law is the 9th sect. 11 not a forfeiture of the property. In Bryson v. Wylie, Bry& 12 Geo. 3, c. 8, is not a for. son was a creditor of the bankrupt for so much, and his feiture of the property by the taking that species of security did not avoid his demand for owner. the debt. If a man were to purchase goods and pay for

them, and permitted them to remain in the hands of the seller who became bankrupt, he would be a creditor to the amount of the money he paid for the purchase.

As to that part of the case therefore, there is no difficulty in saying that this money must be accounted for: I do not touch on the case of yohn Brown, nor on what would have been done if William had filed a bill in his life-time.

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V.

I remember a case where a person who was executor to 1804. a smuggler, on being called on to account for the estate

JOY of the testator, endeavoured to avoid a considerable part

CAMPBELL. of the account by saying that they were smuggling transactions on which the courts would not allow

An executor action to any

shall not probe maintained: the answer was, all that died with the tect himself smuggler; he could not have been sued himself, but his against an ac

count sought executor shall not set up that as a defence against his credi- by creditors

and legatees tors and legatees.

on the ground that the trans

actions were On the other part of the case : the funds for paying these such that no

'action could demands are only the property passing under the residuary have been bequest after the specific bequest to Thomas Brown. It is maintained

against the attempted in the subsequent part of the will to charge this; testator. but that is against principle. It is a legacy as much as any legacy cannot

A specific other; and it cannot be considered that the testator meant in a subsequent

part

of the will to give that specifically, and yet to subject it in some manner be charged as if it formed part of the residue. That property there- with payment fore must be taken by the assignees of Brown, not subject legacies. to the legacies, so far as the other fund shall not be able to discharge them.

of debts or

May 12

On the remaining part of the case, the Lord CHANCELLOR was disposed to reserve his opinion until the report should come in; but it having been intimated as the wish of the parties to have it delivered in the first instance, the cause was called on again this day.

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Joy

CAMPBELL.

I have stated my opinion with respect to the greater part of this case, and particularly on the question with respect to the interests in the Sugar-House and Rope-Work Companies, so far as respected the rights of the persons claiming under the will of William Brown. I have since that time thought more and more on the subject, and have looked into the act of parliament; and it is impossible to say, within the words of the act, that under the circumstances of the case, these interests were chattels in possession of the bankrupt with consent of the true owner : with respect to them he was the true owner, subject to the interest which the persons who claimed under W. Brown had. Therefore I must consider this question, as I did before, clearly with the plaintiffs.

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That part of the case on which I had not clecided, thinking that it might be better to wait for the account coming in, but on which it is thought fit that I should immediately decide, is with respect to the liability of Campbell to answer for the sum of money, the property of W. Brown, which was in the hands of the partnership to which he belonged at the time of W. Brown's death. That suin was due from Campbell and the other partners in that house, to W. Brown, their co-partner, and consequently to his executors, after his death. The transactions that took place afterwards were, that 1,540were paid to, and applied ifta some way by Thomas Brown, but about 3,2001. was de". tained by Campbell, and then the balance paid to Thomas i Brown; the whole of the transaction being evidently with the concurrence of Campbell, who joined in giving a formal receipt and discharge for the money, though both of them not having actually received the money has raised a question, in consequence of cases which have been discussed,

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how far a mere formal joining in a receipt shall bind an 1804. executor. That is not precisely the question here ; but the

Joy principles which have been discussed in those cases, go a

CAMPBELL. great way to shew what ought to be the principle to direct the decision of the court in such a case as this. The cases in which all these questions were discussed are Sadler v. Hobbes, 2 Bro. C. C. 114, and Scurfield v. Howes, 3 Bro. C. C. 91, recognizing Sadler v. Hobbes(a), which is considered as going a great way in settling the ques-, tion on these points. The distinction seems to be this Escutors join with respect to a mere signing ; that if a receipt be given money which is for the mere purposes of form, then the signing will not under the concharge the person not receiving: but if it be given under cir- buth shall be cumstances purporting that the money, though not actually responsible

though the moreceived by both executors, was under the controul of both, ney be actually such a receipt shall chargc, and the true question in all those received only

it cases seems to have been, whether the money was under the amounts to a

direction by controul of both executors: if it was so considered by the the other to person paying the money, then the joining in the receipt pay his co-exe

cutor. Secus, by the executor who did not actually receive it, amounted if the signing

be of necessity, to a direction to pay his co-executor; for it could have no and the money other meaning; he became responsible for the application not under the

controul of of the money, just as if he had received it. But this does both. not apply to what is done in the discharge of a necessary duty of the executor; for example, an executor living in London, is to pay debts in Suffolk, and remits money to his coexecutor to pay these debts, he is considered to do this of ne... cessity: he could not transact business without trusting some persons, and it would be impossible for him to discharge his duty if he is made responsible where he remitted to a pera son to whom he would have given credit, and would in his own business have remitted money in the same way. It's

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(a) Vid. also Balchen v. Scott, 2 Ves.jun. 678, Hovey v. Blakeman, 4 Ve8. jun. 596; Bacon v. Bacon, 5 Vee.jun. 331 ; Chambers v. Min. chin, 7 Ves. jun. 186.

1804.

Joy

V. CAMPBELL.

would be the same, were one executor in India, and another in England, the assets being in India, but to be applied in England; there the co-executor is appointed for the purpose of carrying on such transaction ; and the executor is not responsible, for he must remit to somebody, and he cannot be wrong if he remits to the person in whom the testator himself reposed confidence.

But this is not the present case: the real question in this case is, has the property been under the controul of Campbell? now there can be no doubt that it was under his controul; for he was one of the partners in that house, and was therefore perfectly competent to say that it should not be applied but in payment of the debts and legacies of Jillium Brown. Was it applied under his direction? unei questionably it was: first as to the money applied in payment of his own debt, that was applied without any original interference by Thomas Brown at all: he took on him-. self to say Thomas Brown should not have the money, but that he would have it, and he says he lent that money on the credit of the balance that would probably be due from William Brown to Campbell & 60.; that he would not have lent it but for that. The result is, he would not have : trusted Thomas with the 3,2001.; it was William and not Thomas that he trusted, and this is the strongest evidence against himself that he doubted the solvency of Thomas, or at least that his affairs were so embarrassed, he was not a person

from whom he could readily get back the money.' Then with respect to that, see how he acts; he takes the 3,2001. and by so doing becomes a trustee for the credi. tors and legatees of William Brown, of the notes of Brown and Oakman and of John Brown, (so far as he ought to join in indemnifying the estate of William) and having taken that character of trustee he violates it grossly: he delivers the notes to Thomas Brown, whom he knew would not set up the demand; and therefore having made himself

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