1806. CROSSE and Others versus SMITH and Auother. declared, of which she had notice, as stated in the pleadings. Munt has obtained his ceruficate. Munt had no assets of Grierson in his hands, at the time he became a bankrupt, on which thepicintiff Eliza Lawrence Crosse, could found the propio a debt against him as having committed a devastavit to the amount so proved, without including the money he had so receiv ed from Smith. She knew the 4001, had been remitted by Smith to him, for the purpose of paying the bond, at the time she proved the debt under the commission. Subsequent to all these proceedings, and before the commencement of the action, the plaintiffs intermar ried. The question for the opinion of the court is, whether the plaintiff's are entitled to recover against the defendant Smith? If the court shall be of opinion that they are, then the verdict to stand; if not, then a verdict to be entered for the defendant Smith. DAMPIER, for the plaintiff. "The defendant in this case must rely upon the plea of plene administravit ; for the issue on the notice was found against him. If a trustee receives money, he only who receives is liable to be charged with it, and not his co-trustee; but in the case of executors, if money is received by one of two executors, both are liable as against creditors, but not as against legatees: Churchill v. Hopson.* Here the defendant is an executor and not a trustee, and the plaintif is a creditor and not a legatee; and in Lemun v. Fooke, it is held that it is immaterial, whether the bond is forfeited at the time of the testator's decease; for, notwithstanding it be not, it shall be preferred to simple contract debts. And, where, by the act of one of the executors, the estate comes to the band of another, the former executor will be liable, in the same manner as if he had suffered another per * 1 Salk. 318, 2 P. W. 241. + 3 Levinz, 57. 1806 CROSSE versus SMITH son to receive the money. Lord Thurlow says, in the case of Sadler v. Hobbs,* that the mind of the court hath changed in various instances in cases of trustees; and Others but in cases merely in regard to executors it has continued invariable. He cites Gill v. the Attorney Ge- and Another. neral, that where one executor takes the money, but of his own authority, his companion shall not be charged; but if he puts the money in the hands of his companion, he shews that he had the power to secure it, and that his companion for some reason was permitted to obtain the possession of the money. Here Smith bad the money, in his hands, and it was for his own convenience that he put it into the hands of the co-executor. And the question of whether the joining in a receipt by one executor will make him liable was very anxiously considered by Lord Alvanley in the case of Scurfield v. Howest and he held that in general it did. These cases were all cases of failure of a party; but this is a case of devastarit, for he put it into the hands of Munt whom he knew to be a simple contract creditor, and to have an interest in wasting the property by payment of his own debt. In the case of Balchen v. Scott one of the grounds upon which the executor was held not liable was, because he had never acted; but here both administered, and the other cases were not cited in that case. So in Bacon v. Bacon, it is said that courts of equity have lately leant in favour of executors; but in the case there was a strong clause that neither of the executors should be answerable for the other, and such a clause was relied upon in the case of Westley v. Clarke, where Lord Northington held the executors not liable who had signed a receipt, but had not received any part of the money; and the whole of the doctrine now stands as it * Bro. C. C. 116. Hardres, 31. 13 Bro. C. C, 90 1806. CROSSE versus SMITH is laid down in the case in Hardres. Secondly, supposing the plene administravit is not made out, it is to be and Others considered whether the proceedings under Munt's commission will bar this action against Smith. By the and Another." statute 10 Anne, c 15, s. 3, the discharge of a bankrupt by his certificate is not to be a discharge of his partners, joint-obligors, or contractors, but they remain still liable. This then was a joint demand against Munt and Smith, although they may sever in pleading. The money having been received by Smith, and having by his permission got into Munt's hands they are liable jointly for the whole, upon the authority of Gill v. the Attorney-General,+ and the case is within the statute. If therefore, it is objected that we discharged Smith by resorting to Munt; and if it is a joint debt, it is answered by the statute; but if it is a several remedy, then there is nothing to shew that Smith is not now answerable. He is answerable, because he had assets in his hands, and so is Munt also; and then, just as upon a bill of exchange where several parties are severally liable, you may sue each.” MARRYAT, contrà. "The proof under Munt's commission was allowed upon the authority of the case ex parte Llewellyn‡ and Smith had no other funds whereby he could be charged, except this money which was paid over to the other executor. If this is suffered to charge him, it will be very inconvenient in all cases of executorship, for it will prevent all executors from making any merely partial interference in the administration of the effects. If two executors live at distant places, and money is to be paid by one, for which he has not funds without the aid of the other, it will be very inconvenient to charge the one who ends it to be applied *Ut Supra. Ut Supra. Cooke's B. L. 135, Ed. IV. 1806. CROSSE in due payment, if it is misapplied by the other executors, were formerly held to more strictness than in modern times. For, if they received principal and inter- and Others est on a boud which was forfeited, it was a devastavit; versus SMITH and if one signed a receipt, he was bound by it, al- and Another. though he never had the money; but the result of the decisions is now, that if one acts bonâ fide he is reliev able. In Churchill v. Hobson* the decree is stated by Mr. Cox in his notes; and the order is, that, if the plaintiff joined in any receipt with the defendant Goodwyn the co-executor, for sums which were paid toGoodwyn, or received any money as part of the testator's estate, and paid it over to Goodwyn, before the date and issuing of the commission of bankruptcy against him, the plaintiff is to be discharged thereof. There Lord C. Harcourt held, that, as against legatees, the executor was not to be liable, though he might as against creditors who were entitled to all the benefit of the law. How far is this rule to be extended? If it is necessary to pay money into the hands of a banker and he fails, or if he is robbed, is the executor to be liable? An executor should not be answerable for more diligence and care than an ordinary bailee." Lord ELLENBOROUGH, C.J. "He has an absolute property, and is not like a bailee. This is quite a novel question in a court of law, and there is no case to shew, that an executor is answerable, unless there is misconduct; but here is no misconduct, and the party is barred by having resorted to the other executor." DAMPIER, in reply." As to the third point, that we adopt the act of Smith in the payment to Munt, by proceeding under the commission, and that we have discharged Smith, because Smith could not prove un 1806. CROSSE versus SMITH der Munt's commission, which otherwise he would have a right to do; the answer is, that, if Smith was then and Others liable, he could have sued Munt then; if not, he may sue now. As to this point, with respect to executors, and Another. Lord Thurlow says, in Sadler v. Hobbs, that the law is not altered, there is a very material case in Croke Car. 312, Foster v. Townley, but better reported in Bridgeman, 85, in which it was decided upon principles of law as well as of equity, that a trustee joining in the receipt shall be liable, because he appears to have received the money.' Here he knew that Munt would have an interest in the misapplication of the money. He had notice of the simple contract debt." Lord ELLENBOROUGH, C. J. "We must presume that the payment over was bona fide." LAWRENCE, J. "He put no more trust in Munt, than the testator put in him. Did he know that Munt had a claim? He might have known that he had no claim as against the bond." DAMPIER. "If an executor trusts a banker, he does it at his own peril. As to not being answerable on a robbery, that may be a different question; but this is not the case of a loss by accident, and the case of a bailee is not at all applicable." Cur, adv. vult. And now the judgment of the court was delivered to the following effect, by case. Lord ELLEN BOROUGH, C. J., after stating the "The question is, whether the plaintiff is enti tled to recover as against Smith. The only materia! question is, whether Smith,the defendant, having once as the executor of Grierson, deceased, had 4001. of the effects of. Grierson in his hands liable to the payment of the bond of the plaintiff, and capable |