1806 CROSSE versus SMITH of being so applied, is discharged in point of law, by having paid it over to his co-executor; but who was afterwards guilty of a devastavit, by misapplying and Others the sum so received to the payment of his own debt. It is further suggested also, that the plaintiff Eliza and Another, Crosse has discharged Smith by receiving a dividend under the commission of Munt, the other executor; but that is only an extinction of the plaintiff's debt pro tanto, that is, to the amount of the dividend to be received, and does not operate as a bar to this action, as it is pleaded, and it is not necessary to take up further. time in the consideration of so clear a proposition. As to the other point, it has been held, that where by any, act or agreement of the one party, money gets into the hands of his companion, whether a co-trustee or co-executor, they shall both be answerable. In Sadler v. Hobbs, Lord Thurlow founding himself on the case of Churchill v. Lady Hobson, was of opinion that if one executor puts money into the hands of his companion, he is liable for the sum received. In Westley v. Clark,+ Lord Northington, C. held, indeed, that where executors had called in a mortgage debt, and both had signed the receipt, the executor who had not actually received any part of the money was not liable to repay it. He laid great stress on the receiving of the money. He says, the material part of this transaction is the receiving of the money, which was by one of them, the other signing the receipt is only form. I am therefore of opinion, that the defendants Clarke and Betts, (who were the other executors that signed the receipt,) are not liable to make good the sum of 6001. no part of which came to their hands, the same having been received by A. C. Thompson, the bankrupt.' It appears, therefore, from this, that the ground on which that case was decided, was the fact of * 2 Bro. C. C. +1 Peere Williams, 83, (n) 1806: CROSSE and Others versus SMITH their having received no part of the money, and that if they had, Lord Northington would have held, that they were liable with the other. In Hovey v. Blakeman, the opinion of the Master of the Rolls particularly ap and Another. plies to the doubt, whether joining in a receipt and doing some necessary act to enable the partner and co-executor to receive money, made him liable; yet if he had received the money himself, it would never have been made a doubt; and it appears there, that the money was applied by him. Previous to the case of Bacon v. Bacon, it was never thrown out that it is sufficient that the business was transacted in the ordi. nary manner, and that unless there were some circumstances to awaken suspicion, it would be right to confirm it. If this were so, it would follow that an executor would be considered as a mere ordinary bailee; and there is no case at law, that an executor, once become responsible for the assets by the actual receipt of money, can found his discharge in respect thereof, either on the apparent security of his actual agent, or the reasonable confidence which he may repose in his co-executor, which is, in the event, disappointed. There is no case, that, like a bailee, he is not responsible for loss, except in case of negligence. Here the hardship of the case would induce us to go as far as possible for the relief of the party, but we are obliged to pronounce that Smith having received the money, and paid it over to Munt to be applied in payment of the plaintiff's debt, but such application being disappointed by Munt, he is liable, as much as if the misapplication had arisen from any other accident, and was less entitled to favour." JUDGMENT for the PLAINTIFF. #5 Vezcy, Jun. The KING against DOBSON and Another. 1806. A person acting as collector of the income tax under the statute Statute, 43 43 Geo. III. c. 69, and by the acknowledged appointment of Geo. 3 c. 99. s. 51, 12,62,63, the commissioners, although his assessment is not duly signed Extortion. under 43Geo.III.c. 99, s. 12, is nevertheless to be considered, Income Tax. with respect to all penalties for misconduct,as a collector under that statute, and liable to no other penalty or punishment except such as is, thereby imposed; by reason of s. 51, which exempts collectors from all penalties other than by that act, or by the acts therein recited imposed. And, therefore, where such collector committed an offence within the act, which would have been extortion at common law: Semble, that he could only be prosecuted for the pecuniary penalty under that act. THIS was an information against the defendants for extorting money under the pretence of being collectors of the income tax; which was tried at the last assizes for York, before CHAMBRE, J. when the defendants were convicted on the 3d and 4th counts, which stated as follows; "That the said defendants in unlawfully contriving and intending to cheat and defraud one Arthur Price, heretofore to wit, on the 1st day of June in the 44th year of the reign aforesaid, with force and arms, at the township of Pickering, in the county of York, did by colour and pretence of their, the said defendants, being collectors of certain duties, payable to our said lord the king under 'and by virtue of the said act of parliament,* unlawfully, fraudulently, and for the sake of gain and Jucre, to them the said defendants, demand and exact of and from the said Arthur Price, a certain large sum of money, to wit, the sum of 51. 5s. as and for duties payable by the said Arthur Price, to them the said defendants for the use of our lord the king under and by virtue of the said act of parliament, for a certain year then elapsed, to wit, the ended ou * Stat. 35 Geo. III. c. 99. year The KING versus DOBSON and Another, 1806. The KING versus DOBSON and Another. the 5th day of April, in the year of our Lord 1804, did then and there in pursuance of such demand and exaction, unlawfully, fraudulently, and for the sake of such gain and lucre as aforesaid, receive and have of and from the said Arthur Price, a certain promissory note for the payment of money, to wit, of the sum of 51. 5s. and being of the value of 51. 5s. in discharge of the said sum of money so demanded and exacted as last aforesaid; whereas in truth and fact the said sum of money so demanded and exacted as last aforesaid, was not, nor was any sum of money whatever then and there payable by the said Arthur Price, as and for duties to them the said defendants, for the use of our said lord the king, under and by virtue of the said act of parliament for the year in that behalf before mentioned; and the said defendants did afterwards, to wit, on the 1st day of June, in the 44th year aforesaid, at the township of Pickering, in the said county of York, convert and dispose of the said promissory note, and the value thereof to their own use, &c. The fourth count was very similar, charging them to have received 51. 5s.; and there were other counts, charging them to have been collectors, and to have received the same by colour and pretence of the said office. At the trial it appeared that the defendants had been appointed collectors for the year 1804, and had acted as collectors, and not having duly paid over certain monies received by them were summor.d before the commissioners, but the assessment under which they were to act was not duly signed by the commissioners according to the statute 43 Geo. III. c. 99, s. 12. Upon this ground, HEYwoon, Serjt. of council for the defendants objected that they were not duly appointed collectors, and, under the direction of the 1806. learned judge, they were acquitted upon all the counts which charged them as collectors, and found guilty The KING upon those by which they were charged as pretending to be collectors. HEYWOOD, Serjt. in the last term, obtained a rule to shew cause why there should not be a new trial, or why the judgment should not be arrested, upon the ground, that there was sufficient evidence of the defendants acting as collectors, and that the want of signing the assessment, which was the neglect of the commissioners of the property tax could not render them subject to criminal punishment, for acting under the authority excepting as collectors; and that, taking them to be collectors, then by the statute 43 Geo. III. c. 99, s. 51, they were liable to a penalty of 1001.* And that by the same statute, s. 19, they are exempted from all other penalties than those imposed by the property or income tax acts, none of the clauses of which impose any further penalty.† * Statute 43 Geo. III. c. 99, s. 51, "And be it further enacted that no collector or collectors of any of the duties hercin-mentioned, shall collect or gather the same by any rate or book other than such rate and book as shall be signed and allowed by such commissioners as aforesaid, or any two or more of them, and that in case any such collector or collectors shall collect the same by any other rate or book, or shall receive such duties from any person or persons not charged therewith, or shall collect from any person or persons more money than is actually charged in such rate or book, and not pay the whole money by him collected; or fraudulently alter any such rate or book, after the same bath been signed and allowed by such commissioners as aforesaid, every such collector or collectors shall for every such offence forfeit the sum of 1001," + Section 19," Provided always and be it further enacted, that no commissioner, assessor, or collector, who shall Le versus DOBSON and Another, |