the deceased; and after they have been paid, the executors may be trustees of the residue for the husband.

If, on the other hand, the disposition exercised by the wife in her will extended to the stock only, then she died intestate as to the accumulations, and the husband was bound to take out administration cæterorum, as would have been done in Ledgard v. Garland (1 Curtis, 286), if there had not been a question upon the construction of the will, which was left for the decision of the court of equity. The cases bearing on this point are collected in Williams on Executors (vol. i. pp. 321-327, 1st ed.; p. 280, 2d & 3d ed.). [Tindal C. J. A cæterorum grant would probably relate to choses in action only.] In Salmon v. Hays (4 Hagg. Eccl. Rep. 382, 386), a feme covert having made a will of her separate property, but having appointed no executor, the court refused to grant a limited administration with the paper annexed, to the legatees therein named; but according to the course of office, granted a general administration, cum testamento annexo, to the husband; and Sir John Nicholl in his judgment gives this reason for so doing; "What would be the effect of the court rejecting him (the husband)? It might lead to two distinct grants-the one limited to the two daughters (the legatees), the other, to the husband; because, if the wife has left any other property than that over which she had, and has exercised, a disposing power, the husband will be clearly entitled to have a cæterorum grant." [Tindal C.J. Sir John Nicholl merely says, that the husband might have such a grant, not that it was absolutely necessary. Maule J. Suppose the defendant had taken the money in the lifetime of the wife, in whose name must an action have been brought to recover it?] The wife would pro-[399]-bably have been joined with the husband for conformity. [Maule J. Could not the husband have sued alone?] Carne v. Brice (7 M. & W. 183) is certainly in favour of that proposition; but equity would probably decide differently. [Maule J. But we must decide according to law. Equity would look to all the circumstances of the case; such as whether the husband had supported the wife, whether they had lived together, and so forth. We have no means of instituting such an inquiry.]

The last question is, whether this action will lie against this defendant. The executor is clearly entitled to some of the property of the deceased. He is prevented from going himself to her house, and he sends his son, who takes the money, and hands it over to his father. How can he, receiving this money as agent for his father, be said to have received it to the use of the plaintiff? It is not denied, that if a servant does a wrongful act by order of his master, either the master or the servant may be liable in trespass; but this is an action upon an implied contract. Suppose the father had brought an action for money had and received against the defendant to recover the money, could the latter have set up the right of a third party as a defence? [Maule J. Perhaps not. But a person may, by his own conduct, render himself liable to two parties. As if he receives a chattel from A., and agrees to return it to him, he will be liable to him, if he does not return it; and he may be liable also to the true owner.] But in such a case the double liability would not arise from one and the same act; neither would the party be responsible in the same form of action. He would be liable, on his contract, to A., and would be liable, in trespass or trover, to the true owner. The taking of the money by the defendant is only one act, and he cannot be liable in respect thereof to two different parties.

[400] TINDAL C. J. I think this rule must be discharged.

The first question is,-who had the right to the money, in respect of which the action is brought, at the time of the death of the plaintiff's wife? It appeared that she had been living apart from her husband, having an interest in some funded property, which was secured to her separate use, and which she had the power of disposing of by her will. She had made a will and appointed the father of the defendant one of her executors. After her death, the sum of money in question was found locked up in a drawer in her lodgings; and the defendant went to the house and obtained possession of it for his father, who was one of her executors. Of what did this money consist of accumulations of the dividends of her separate estate, or of savings derived from other sources? If of the latter, no further question could arise, as the plaintiff would clearly be entitled to recover. But admitting that the money was the produce of the dividends, the question is, whose property it was at the time of the wife's death.

Without entering into the question, whether or not the wife had the power of

disposing by will of the accumulations of these dividends, it is enough to say that no such disposition appears to have been made in this case; as the will is limited to the proceeds of the long annuities when sold, and leaves the prior accumulations untouched. But then it is said, that although these accumulations were not disposed of by the wife, yet, executors having been appointed, the law vested the money in them. But the authority of these executors is only co-extensive with the power given by the will; for the executors here do not take jure representationis, but under the power which the wife was authorised to exercise by making a will as to this particular property. They are therefore not entitled to this money.

The next question is as to the right of the husband [401] to the money. In Com. Dig. tit. Baron and Feme (E. 3), it is laid down that "all chattels personal which the wife has in possession in her own right, are vested in her husband by the marriage, though he do not survive. So, chattels personal, not in possession at the time of the marriage, if they are reduced into possession during the coverture" (citing Co. Litt. 351 b.). It has been admitted, in the course of the argument, that if this money had been taken away during the lifetime of the wife, the action must have been brought by the husband alone. Perhaps in such case he would have been considered in equity as a trustee for the wife; but, at law, the action must have been brought by him. The case of Carne v. Brice is a strong authority in favour of the husband's right to the money; and Molony v. Kennedy shews that he was entitled to the possession of it without taking out administration to his wife. These authorities, therefore, dispose of the first part of the case, and establish that the husband was, at law, entitled to the money sought to be recovered in this action.

Another point which has been insisted upon is, that this money was received by the defendant to the use, not of the plaintiff, but of the defendant's father, as executor; and that the money having been paid over to the father, the action ought to have been brought against him as the principal. The answer to this is, that the defendant was a wrong-doer in taking the money, and would have been liable to the plaintiff in trespass. The plaintiff however waives the tort, and sues the defendant for money had and received; and the defendant cannot relieve himself from liability, by paying over the money to another party, as he might have done if the original taking had been lawful (b). This circumstance distinguishes the pre-[402]-sent case from Stephens v. Badcock (3 B. & Adol. 354); for there the defendant received the money as agent for a party who was entitled to receive it; whereas here the receipt was altogether wrongful, and it must be taken with all its consequences. I am of opinion, therefore, this rule must be discharged.

COLTMAN J. I am of the same opinion. The case of Carne v. Brice appears to me to go the whole length of the present, and to establish that, although the wife may be entitled to separate property, the dividends arising therefrom, when received, vest in the husband. That is the principle of this case. The rule of law is, that in order to protect property from the husband, it must remain in the hands of the wife's trustees. Courts of equity seem to think that if the wife dispose of the property by will, it is still affected with the trust. Here, however, the property in question was not disposed of; and the case of Molony v. Kennedy shews that the property passes to the husband without administration; and I think that even if it had been disposed of, the rule, at law, would still have been the same.

It is said that this is an equitable action, and therefore that the same equities are to be considered as would prevail in a court of equity; and it is argued that the husband would be liable in equity to pay the expenses of his wife's funeral. But I think there is nothing inequitable in allowing this action. The defendant, as agent for the wife's executor, claims a sort of equitable set-off for the funeral expenses; but if the executor has made such a payment, it was a payment in his own wrong; for he is not a general executor, but an executor for a specific purpose only, and has therefore but a limited interest in the property of the deceased.

[403] The remaining point is, that the money was received by the defendant as an agent, and has been paid over by him to his principal. The answer to that is, that in taking the money the defendant was a trespasser. In Stephens v. Badcock the receipt was rightful; whereas here, though innocent in fact, it was wrongful in point

(b) And see Edwards v. Hodding, 5 Taunt. 815, 1 Marsh. 377.

of law; and a party is bound to know the law. Under such circumstances it is no justification to an agent that the money has been paid over.

MAULE and CRESSWELL JJ. concurred.

Rule discharged.

PHILLIPS v. EMILY ANN BIRCH. May 28, 1842.

[S. C. 5 Scott, N. R. 178; 2 D. N. S. 97; 11 L. J. C. P. 297.]

A summons before a judge at Chambers, taken out after judgment in the cause, does not operate as a stay of proceedings. Although it is the entry of the judgment of record on the judgment-roll, and not the entry of the minute of the judgment in the master's book, that constitutes the judgment itself, yet a summons taken out after the entry of such minute is not a summons taken out in the cause.—In debt, the plaintiff having signed judgment by nil dicit, the minute of the judgment was entered in the master's book, mentioning the whole amount demanded by the declaration. A fi. fa. was then issued for the amount really due, and costs. A summons having been taken out to set aside the fi. fa. for irregularity, by reason of its not corresponding with the judgment, the plaintiff, before the summons was attendable, perfected the roll by entering up judgment for the amount mentioned in the fi. fa., and entering a remittitur for the residue of the sum demanded by the declaration. At the hearing of the summons, the record so perfected was produced before the judge, who nevertheless made an order to set aside the fi. fa. This order was rescinded by the court.

Channell Serjt., in last Easter term (April 18th), obtained a rule calling upon the assignees of the defendant to shew cause why an order made in this cause by Lord Denman C. J., at chambers, should not be rescinded.

The following facts appeared from the affidavits. The [404] action was brought in debt on two promissory notes; the declaration contained three counts, and the aggregate sum demanded was 15001. The real debt sought to be recovered was 5141. 168. On the 28th of February the plaintiff signed judgment for want of a plea (vide post, p. 405 (a)). A writ of fieri facias was, on the same day, issued upon the judgment, and the sheriff thereby was commanded to cause to be made of the goods of the defendant 5141. 16s., which the plaintiff then lately had in, &c. recovered against her, and 81. 4s. for costs, with interest upon these two sums at 4 per cent. On the 1st of March the sheriff levied upon the goods of the defendant under this writ, and sold them on the 9th, and two following days. On the 7th of March a fiat in bankruptcy issued against the defendant, under which she was declared a bankrupt; and (the petitioning creditor under the fiat having set up a claim to the goods seized) the sheriff applied for relief under the interpleader act; and thereupon an order was made that the sheriff should pay the proceeds into court, and that an issue should be tried to ascertain the right to them. On the 15th of March the plaintiff's attorney was served with a summons to shew cause why the fi. fa. and all proceedings thereon, should not be set aside for irregularity, with costs, on the ground that there was no judgment to warrant the execution, and that the writ did not correspond with the judgment signed in the cause.

The affidavit of the plaintiff's attorney, upon which the present rule was obtained, stated "that the alleged irregularity urged in support of such summons was, that by the entry made by the clerk of the judgments (b) in his book, on the said plaintiff so signing [405] judgment in this cause in manner aforesaid, it appeared that the said plaintiff had so taken judgment for the aforesaid penal sum of 15001., whereas, in truth and in fact, the said plaintiff had only taken judgment for her aforesaid real debt of 5141. 16s. and costs of suit; such erroneous entry arising from the general practice of merely entering an incipitur on the judgment-paper at the time of signing judgment, and consequently the clerk of the judgments does not see the award of judgment entered or completed on such judgment paper or on the roll, the roll being

(b) In point of fact, there is now no such officer as the clerk of the judgments; the office was abolished by the statute 1 Vict. c. 30. The business is transacted at present in one of the masters' offices.

usually afterwards completed and filed and docketed with the proper officer; and that in consequence of its appearing that the said plaintiff had taken judgment for such penal sum of 15001. and the mandatory part of the aforesaid writ of fi. fa. not corresponding therewith, inasmuch as such writ of fi. fa. only directed the said sheriff to levy the real debt of 5141. 16s., such variance was argued to be a sufficient irregularity for the said writ of fi. fa. and all proceedings under the same being set aside "(a).

[406] The summons was returnable on the 16th of March, but the plaintiff's attorney did not attend on that day. The summons was renewed and made returnable on the 17th. On that day the plaintiff's attorney completed the judgment on the roll, entering a remittitur for 9851. 4s. parcel of the said sum of 15001., and a prayer of judgment for the residue (5141. 16s.), together with costs; and on the same day it was filed and docketed.

On the 19th of March the summons was heard before Lord Denman C. J. at chambers, when the judgment-roll was produced in conformity with the writ of fi. fa. His lordship, however, made the order, now sought to be rescinded, in the terms of the summons.

Sir T. Wilde Serjt. now shewed cause. Under the circumstances the order of Lord Denman was quite correct. The entry in the master's book was, in fact, the entry of the judgment, and it could not afterwards be altered. The costs of perfecting the roll are allowed in practice, although only the incipitur is entered. The amount for which the judgment is signed being stated, in the entry made in the master's book, to be the whole sum mentioned in the declaration, viz., 1500l., and the fi. fa. having issued for 5141. 16s. which was therein stated as the sum recovered by the plaintiff, there was clearly [407] a variance between the judgment and the writ, and consequently the latter was irregular. While things were in this state, a summons was taken out before the judge to set aside the fi. fa. for this irregularity; but before the summons came on to be heard, the plaintiff, behind the defendant's back, entered a remittitur on the roll, so as to make the judgment-roll correspond with the fi. fa. The case of King v. Birch (2 Gale & Dav. 513), decided by the Queen's Bench last term, will be relied on by the other side, where, under somewhat similar circumstances, that court rescinded an order like the present. That judgment appears to have proceeded upon the ground that the incipitur is merely a warrant to enter

(a) Some discussion arose in the course of the argument as to whether the amount for which judgment was signed, would appear, except upon the roll. The course of practice in the master's office has been ascertained to be as follows:-The attorney, who signs judgment, produces a judgment-paper, that is, a paper on which is transcribed the commencement of the declaration (hence called the incipitur) down to the words "For that whereas" inclusive, (with the exception that the date at the heading is the day on which judgment is signed, instead of being that on which the declaration was filed or delivered). At the foot of this (in ordinary cases) the master writes— "Allowed £ (leaving a blank for the costs).

"Signed," &c. (the date on which judgment is signed).

No entry is made of the amount for which judgment is signed; but where the action is in debt, as in the present case, the sum demanded would of course appear in the commencement of the declaration so transcribed. The master then makes a minute in the daybook to this effect::

"15001.,*1 Middlesex,†1 Phillips v. Birch (Emily Ann), D.,*2 King,"†2 and the judg ment-paper is returned to the attorney. Subsequently, a transcript of the above minute is made in the judgment-book, but omitting the sum, and commencing with the venue.

Another question raised was,-whether or not it appeared by the judgment-roll that judgment had been signed on a different day from that stated in the affidavits. The roll was examined by the court; but it appeared there was no entry upon it of the day when the judgment was signed.

*1 The sum demanded, in debt; the amount of the damages laid in the declaration, in actions which sound in damages.

judgment for the sum stated in the declaration, and not for more. But, unless under particular circumstances, the incipitur is the only judgment entered, the judgmentroll being, in practice, but rarely carried in. At any rate, after the summons had been taken out to set aside the fi. fa. for the irregularity, it was too late to make an entry on the roll for the purpose of making the judgment correspond with the writ; as the summons would operate as a stay of proceeding from the time it was attendable, even though it were not, in fact, attended. Although, between the original parties to the suit, the court might have allowed an amendment of the writ, they will not do so where the rights of assignees have intervened, as in this case; Hunt v. Pasman (4 M. & S. 329); Webber v. Hutchins (8 M. & W. 319).

Channell Serjt. (with whom was Pashley), in support of the rule. The facts in this case are nearly the same as those in King v. Birch, the sole difference being in the figures. The court there decided, that the only thing that could be looked at was the judgment-roll; [408] and the roll having been perfected before the order was made at chambers to set aside the writ for irregularity, the court rescinded such order with the full concurrence of Lord Denman, by whom it had been made. There, the court adopted the argument, that the incipitur was the mere leave of the court, by its officer, to enter up judgment for the sum mentioned, or any smaller sum. The first summons in this case not having been attended, would not operate as a stay of proceedings, so as to prevent the party from perfecting the roll. Under the old practice, three summonses were necessary; but now, by the new rules (T. 1 W. 4, r. 9), the second summons is peremptory. There is no general rule that there is to be a stay of proceedings from the return of the first snmmons. In Lush's Practice (page 803), it is laid down that, "as a general rule, a summons does not operate as a stay of proceedings, unless it be a part of the application why in the meantime all further proceedings should not be stayed;' nor does an order, unless it so expresses. The exceptions are, where the applicant has to take the next step, and the application relates to the time or mode of taking that step; as where the summons is for time to plead; for leave to plead several matters; to strike out a count, &c. ; cases where a stay of proceedings is necessarily implied." This case, certainly, does not fall within the principle of those exceptions. [Maule J. In Archbold's Practice (page 1201, 7th ed., by Chitty) it is said, "When the object of the summons is collateral to the time for pleading, as to discharge the defendant out of custody on filing common bail, it will not, in general, operate as a stay of proceedings. A summons to tax an attorney's bill, though served, does not operate as a stay of proceedings from its return, so as to prevent the attorney issuing a writ, [409] the defendant not having signed an undertaking to pay the amount of the taxation."] The same rule is laid down in Tidd's Practice (a).

TINDAL C. J. I think this rule must be made absolute. At the time when Lord Denman made the order in question, a roll of court was in existence, and was produced before him, which sanctioned the writ that had been issued; shewing that the judgment was not for the whole sum of 15001., but only for 5141. 16s. This record of the judgment was therefore, at that time, among the rolls of the court. If the defendant had any ground of complaint that the entering up of judgment on the roll was irregular, as having been done behind his back, he should have made some application to vacate such roll, and to be placed in the same condition in which he was before; but no such application has been made.

I am not satisfied that the summons was to be considered as a stay of proceedings. The authorities that have been cited, rather shew that a summons does not of itself in all cases operate in that manner, but only whilst a cause is going on. After judgment, however, there is an end of the proceedings in the ordinary sense of the words; and this summons, therefore, cannot be said to have been taken out in the

cause.

The other judges (b) concurred.

Rule absolute.

(a) Page 470, 9th ed. And see Tidd's New Prac. 256.
(b) Coltman, Maule, and Cresswell JJ.