ELLIOTT v. ELLIOTT. Exch. of Pleas, could entitle the executor to withhold his assent, are paid. 1841. The position which has been cited from Sheppard's Touchstone requires some qualification. The law is correctly stated in Williams on Executors (a), that a conditional assent is sufficient only where it is the case of a condition subsequent, or such a one as the executor had no authority to annex for his own benefit. It is unnecessary, however, to give any opinion on that point: the only question here is, whether the executors, who have assented to the bequest of stock in trade, have therefore assented to the bequest of this particular chattel, not as a part of one entire thing, but on the ground of its being one of numerous chattels constituting stock in trade. Undoubtedly they are not obliged to assent as to all, but may withhold their assent as to part and here it is clear that, doubting whether this carriage was part of the stock, they refused to assent as to it. They are therefore entitled to recover it in trover, seeing that it never vested in the legatees. GURNEY, B., concurred. ROLFE, B.-I am of the same opinion. There is a clear distinction between the effect of an assent by an executor as to one out of several chattels, and an assent to the bequest of a term of years. If he assent to the tenant for life taking, it would be manifestly unjust that it should not be an assent to him in remainder; that the executor should have it in his power afterwards to take and sell the reversion for payment of the testator's debts, would be an act of great injustice. But the case is totally different as to the bequest of a number of articles, as stock in trade, or plate there an executor may properly withhold his assent as to some, because he may want them, and want them rightfully, for payment of the debts of the testator. Rule discharged. (a) Vol. 2, pp. 1089, 1090, 3rd edit. BRADSHAW v. BRADSHAW. Exch. of Pleas, 1841. Nov. 11. ASSUMPSIT for money paid, money had and received, The plaintiff, At the and on an account stated. Plea, non assumpsit. being insolvent, proposed to his excess received by him beyond the amount of the composition. 1841. BRADSHAW v. BRADSHAW. Exch. of Pleas, negotiated by him, and paid when due by the plaintiff, he had thus received more than the amount of the agreed composition, and the overplus might be recovered back by the plaintiff. The Lord Chief Baron, adverting to the first point, (which had been most prominently made), thought that, as the money had been paid by Waite to the defendant without the privity of the plaintiff, the latter had no right to recover it back, and accordingly directed a nonsuit. In Trinity Term, Erle obtained a rule to shew cause why the nonsuit should not be set aside, and a new trial had; against which use. Thesiger now shewed cause.-The case on the part of the plaintiff is put in two ways: first, that the payment of the 557. 198. 8d. by Waite to the defendant was in fact a payment by the plaintiff, and that the agreement whereon it was paid being fraudulent, he is entitled to recover it back: or secondly, that the surplus received by the defendant beyond the composition of 10s. is, under the circumstances, recoverable as money had and received to the plaintiff's With respect to the first ground, it is clear that the money was paid by Waite without the plaintiff's knowledge; it was in fact Waite's money and not the plaintiff's: and as Waite could not have recovered it back, it being a voluntary payment by him, and he being in pari delicto with the defendant, so neither could the plaintiff, by assuming himself to be the debtor of the defendant, give himself a title to recover which Waite had not. With regard to the second ground of objection, it is not necessary on the present occasion to question the cases which have established that any private arrangement, whereby one creditor is to receive a greater benefit than the others, as an inducement to sign a composition deed, is a fraud on the other creditors, and void: Cockshott v. Ben 1841. BRADSHAW บ. nett (a), Steinman v. Magnus (b), Lewis v. Jones (c). But Exch. of Pleas, here the debtor is attempting to recover back money which has been actually paid to the creditor. In Knight v. Hunt (d), the creditor was seeking to enforce the composi- BRADSHAW. tion, after receiving the surplus under the fraudulent agreement; which distinguishes that case from the present. The case of Ward v. Bird (e) appears most to resemble the present. There the defendant, who was a creditor of the plaintiff, stipulated, by a composition deed, that his debt should be paid at 6s. in the pound by promissory notes; and after the execution of the deed, obtained payment from the plaintiff in full: and it was held, that the plaintiff could not recover back the difference between the full amount of the defendant's debt and the composition, without proving that the composition notes had been paid, or giving some evidence equivalent to such proof. [Parke, B. That case is very inaccurately reported. The money sought to be recovered back had been paid in settlement of an action by the plaintiff himself.] The case of Turner v. Hoole (f) is there referred to as an authority. There a creditor, after having signed a composition deed, induced the debtor to give him bills of exchange for the full amount of his debt, bearing date the day before the composition deed; and, after receiving one instalment, sued the debtor on the bills, and recovered the amount, minus the instalment paid. Lord Tenterden ruled, that the debtor might maintain an action for money had and received against the creditor, to recover back the difference between the full amount of the debt and the amount of the composition. That case would certainly appear to be an authority against the present defendant, but for the circumstance that the report cannot be relied on, since it states the (a) 2 T. R. 763. (b) 11 East, 390. (c) 4 B. & C. 506; 6 D. & R. 567. (d) 5 Bing. 432; 3 M. & P. 18. (f) Dowl. & Ry. N. P. C. 27. Exch. of Pleas, agreement for payment in full to the defendant to have 1841. BRADSHAW บ. BRADSHAW. been made after the signing of the composition deed, in which case it would not be fraudulent at all. And in Wilson v. Ray (a), Lord Denman, C. J., remarking on the case of Turner v. Hoole, says, "Lord Tenterden, in deciding that case, was not reminded of another principle of at least equal importance, which was established in Marriot v. Hampton (b), that what a party recovers from another by legal process, without fraud, the loser shall never recover back by virtue of any facts which could have availed him in the former proceeding." Smith v. Cuff (c) will no doubt be relied on for the plaintiff. But there one of the promissory notes given by the plaintiff, the debtor, had been negotiated by the defendant, and payment had been enforced against the plaintiff by the holder. That, therefore, was a payment by compulsion, and it was not a case of par delictum. [Parke, B.-It is most probable that Turner v. Hoole was a case of the same description, and that the defendant had enforced payment of the bills against the plaintiff, by putting them into the hands of an indorsee.] In Alsager v. Spalding (d), which was a decision on the same ground, it is admitted arguendo that Smith v. Cuff is not distinguishable from Turner v. Hoole. But Wilson v. Ray is an authority for the defendant. In that case, a creditor refused to sign the composition deed without receiving a bill of exchange for the remainder of his debt, which the debtor gave him, and he then signed. the deed; and the debtor having afterwards paid the amount of the bill to the creditor, it was held that this was a voluntary payment, and that the amount could not be recovered back as money had and received. In the present case, it is not the creditor who is seeking to enforce the (a) 10 Ad. & Ell. 82; 2 P. & D. 253. (b) 7 T. R. 269. (c) 6 M. & Sel. 160. (d) 4 Bing. N. C. 407; 6 Scott, 204. |