lie upon this ground of complaint; therefore indebitatus assumpsit will not lie. But there is no foundation for this argument. It is held, indeed, in Slade's Case, 4 Rep. 93, that where debt will lie, assumpsit will also lie; but the negative doctrine, e converso, is not any where held; it is rather a general rule, that where debt will not lie, indebitatus assumpsit will (q). 2dly, That in this case no implied contract can arise, whereupon to ground an assumpsit. But surely, if a man is bona fide obliged to refund whatever money he has unlawfully received, an implied debt is thereby raised, quasi ex contractu. 3dly, That where money is recovered in a Court having a competent jurisdiction, it cannot be overhauled in another Court, but by writ of error or false judgment. But the verdict given in this cause is consistent with the determination of the Court of Conscience. The commissioners determined merely upon the indorsement, and refused to go into the collateral matter of the agreement; in which they did right; else, upon such a matter as a note of 30s., they might go into a large and extensive account; and might settle the balance of a series of mercantile transactions, much superior to their conusance (r). And yet, though the judgment was right, the iniquity of keeping the money so adjudged to be paid may appear in another Court. Suppose an insurer is condemned to pay money on the * death of a person who afterwards appears to be alive; would not a new action lie for him, against the person who recovered upon the former judgment? (s) The admission that an action will lie upon the express agreement, is conclusive upon this case. For the great benefit of this action (upon an implied contract) is, that the plaintiff need not set out the particular circumstances, on which, ex æquo et bono, he demands a satisfaction; but may declare generally for money had and received to his use, and may give the special matter in evidence. And it is equally beneficial to defendant, who may give in evidence any equitable matter, in order to discharge himself. Therefore, if it stood merely upon principles, there is no reason why the plaintiff should be confined to his action on the special agreement, and be debarred his remedy on the assumpsit implied by law. But the point has been expressly determined in Dutch and Warren, M. 7 Geo. 1, Common Pleas (t): wherein it was held, that it was at the election of the party, either to affirm an express contract, by bringing an action on the special agreement, or to disaffirm it, and rest on an implied one, by bringing indebitatus assumpsit. In this case, the plaintiff had paid to the defendant 2627. 10s. for five shares in Copper Mines, to be transferred on the 22d of February, which defen (q) See 1 Com. Dig. Assumpsit (C), pa. 194. 393. (s) See Tomkins v. Bernet, 1 Salk. 22, Skin. 412, S. C. where it is said: " one bound in a policy of assurance, believing the ship to be lost, when it was not, paid his money; and it was held he might bring an assumpsit for the money." See Ld. Mansfield's observations on that case, 2 Doug. 697 a; Holmes v. Hall, 6 Mod. 161; Martin v. Sitwell, 1 Show. 157. This opinion is adopted in Park's Ins 598 (ed. 1817). (t) 1 Stra. 406. dant failed to do. Plaintiff brought indebitatus assumpsit, for money had and received to his use: And the jury, who in these actions can go into all the equity of the transaction, gave him 1757. only, which he recovered; being the value which the shares had fallen to on the said 22d of February. Therefore we are all of opinion, that the defendant ought in justice to refund this money thus malá fide recovered; and though an action on the agreement would also have indemnified him for his costs in the Court below, yet he may waive this advantage and pursue the present remedy. The Postea must be delivered to the Plaintiff (v). (v) See the observations of Eyre, C. J., in Fhilips v. Hunter, in Error, 2 H. Bla. 402. There a partner resident abroad, knowing that a trader in England had stopped payment, attached, in the name of himself and his partners resident here, a debt due to such trader, and obtained payment of it under the judgment of a foreign Court; it was held by six judges (Eyre, C. J., dissent.) that the assignees of the trader might recover the money in an action for money had and received against the partners: affirming the judgment of K. B. The Chief Justice said, (p. 414), "The case of Moses v. Macpherlan, is, I believe, the only decided case, that countenances such an action, but I cannot subscribe to the authority of that case."-" In the argument of that case, it is supposed to be the same thing, as to the force and validity of the judgment, whether the action had been brought upon the agreement, or to refund the money. But it appears to me to be a very different thing. Most certainly the case of Dutch v. Warren, does not prove the proposition. The ground of that case was the disaffirmance of the contract, upon which the consideration money had been paid."- "In the case of Moses v. Macpherlan, I think the agreement was a good defence in the Court of Conscience; but if it were otherwise, the recovery there was a breach of the agreement, upon which an action lay; and this was in my judgment the only remedy."-"I believe that judgment did not satisfy Westminster Hall at the time; I never could subscribe The KING v. GREENWOOD. 999 [ be re-admitted. GREENWOOD was an attorney of this Court, and, about Attorney struck two years ago, was struck off the roll for malpractice; and was off the roll may now upon humble petition and motion re-admitted; the Court declaring, that the striking off the roll was not to be understood as a perpetual disability, but was sometimes only meant as a punishment, and might be considered in the light of a suspension only, if the Court sees cause (u). (u) The like was done by the Court, T. T. 37 G. 3, K. B.; Tidd's Pr. 82 (ed. 1821). But he cannot take any advantage of his privilege in any action then de pending; Ex parte Cole, 1 Doug. 114, n; A will, made pending a com mon recovery, shall convey the lands recovered; post, 251. Essoin day was SELWIN v. SELWIN. S. C. 2 Burr. 1131. THIS was a case stated out of Chancery, for the opinion of the Court of King's Bench. By deed, A. D. 1750, John Selwin was made tenant for life, remainder to his son John Selwin in tail. In 1751, 20th April, the father and son joined in a bargain and sale to one Wakelin and his heirs, to make him a tenant to the præcipe, in order for a common recovery, the uses of which were declared to be, for Selwin the father for life, remainder to the son in fee-simple. Trinity Term, A. D. 1751, began June 7th. On the 8th of June, John the son made a will, whereby he disposed of all his real estate (w). In this same Term, a writ of entry was sued out, returnable Quinden. Trin. viz. 17th June, and the recovery was completed the same Term; and soon afterwards John Selwin the testator died. The question was, Whether the lands in question passed by this will, made after the bargain and sale, after the beginning of the Term, but before the return of the writ of entry? Mr. Sewel, for the plaintiff argued, that they did not. Nothing passed to Wakelin by the bargain and sale, but a freehold descendible, so long as John the son had heirs of his body: Seymour's Case, 10 Co. Rep. 95 b; said in Machil and Clark, ] Saĺk. 619, to be a base fee, but that is a mistake. *The bargain and sale left nothing in testator. All made over to Wakelin, else he could not be tenant to the præcipe. The uses of the recovery then declared were future, not present uses. The testator therefore had nothing to dispose of, when he made his will, nor till the recovery was completed. Had he died before recovery suffered, he could have disposed of nothing. In Shelley's Case (x), the ground was, that the judgment was actually given the very morning of the day that the recoveree died. Pigott Recov. 153; land passeth not till the recovery completed; 2 Lev. 28, Hudson and Benson, S. P. I consider this recovery as a judgment on the day it really happened, and not as having relation to the first day of the Term. This never held, where it appears upon the face of the record, to be the contrary, or where it would work a wrong or injury to a third person. This would be setting up an averment against fact and the record. (N. B.--In the exemplification of the present recovery, according to a practice introduced by Willes, C. J., about twenty years since, the date of the return of the writ of entry, which formerly used to be noted in the margin by way of memorandum, is now inserted in the body of the record.) (w) He devised all his freehold and other estates, whereof he, or any person in trust for him, were seised or possessed, either in reversion, remainder, or expectancy, and all his estate, right, title, and interest therein, to his father in fee. He SELWIN ย. SELWIN. Pigott, 58; writ of entry returnable before the date of the release, which made the tenant to the præcipe; therefore no tenant, and so the recovery ill. 3 Salk. 212. (Foster, J., declared he had all the reporters in his study, but did not know 3 Salkeld: so not cited.) Barton and Lever, Cro. Eliz. 388; Isley's Case, 1 Leon. 187; 1 Sid. 452; 1 Vent. 58; Latch. 92; Wynn and Wynn, B. R. Mich. 16 Geo. 2 (y); wife was vouchee in a common recovery: she and her husband appeared by attorney before commissioners, but she died before the day of appearance in Court. Notwithstanding this, the judgment was regularly entered; but error being assigned because of her death, the judgment was reversed. *As to the doctrine of re- [ *224 ] lation, both of the recovery to the bargain and sale, and of the judgment to the first day of the Term; see Hind's Case, 4 Rep. 70 b. The bare intent of the party to acquire a new estate does not give it him. Suppose it had been a covenant to suffer a recovery, and then the covenantor makes a will, after the covenant, but before the recovery actually had, and dies; nothing passes by this will, notwithstanding the intent of the party; Cro. Jac. 643; 3 Rep. 25, Butler and Baker; doctrine of relations laid down at large. But, secondly, if the testator had a devisable interest, still the recovery is a revocation of the will pro tanto. For the cestuy que use of the recovery, the testator, retakes his land by a new conveyance. Many cases, which shew recoveries to be revocations of wills made before the date of the præcipe; and the reason will be the same, if the will be made before the return of it. Dister and Dister, 3 Lev. 108; Hudson and Benson, 2 Lev. 28; Marwood and Turner, 3 P Wms.. 163 (≈); 1 Roll. Abridgm. 614, pl. 2; Ib. 615, (Q) pl. 1; Ibid. 614, (O) pl. 3: This last case applies also to the doctrine of relation. York, Solicitor-General, for the defendant, considered-1. What estate passed by the bargain and sale to the tenant to the præcipe. 2. Whether tenant in tail had an estate devisable, and whether he actually devised it. 3. What was the operation of the recovery on this estate. First, as to the estate of the tenant to the præcipe, Seymour's Case (a), and Bredon's Case, 1 Rep. 76, shew, that a base determinable fee passed to the bargainee. Before the statute of uses, there was no other method of making tenants to the præcipe, but by fine or feoffment. The use of the recovery resulted, to be executed in [ equity, if none was declared. Since the statute, new modes of conveyance have been introduced. The estate passed to the bargainee as a base fee. So argued by Holt, C. J. in Machil and Clark, Farresley (b). He has a resulting springing use, which is the same as a trust, for the particular purpose of suffering the recovery: Lord Altham v. Earl of Anglesey, Pigott, 201; Gilb. Rep. 16; Long and Buckeridge, T. 4 G. 1, 1 Stra. (y) 1 Wils. 35, 42; Willes, 563; 7 Mod. 492; Barnes, 17; 5 Crui. Dig. 347, S. C. (z) S. P. Parsons v. Freeman, 3 Atk. 741; Darley v. Langworthy, Ambl. 653, (b) Or 7 Mod. 18; S. C. Holt's R. 615. * 225 1 SELWIN V. SELWIN. 106. After the recovery had, the use results to the tenant in tail, if no other special use be declared.-2ndly, The testator had a future executory use, at the time of making his will. Not a present use, for the statute cannot draw the estate to the use till the possibility (i. e. the completion of the recovery) hath actually happened. And this future executory use is a devisable interest. He said he should trace the doctrine of possibilities by analogy to the doctrine of contingencies. It was anciently held, till Manning's Case (c), that an executory devise on a term of years was bad. But [in] 1 P. Wms. 572, held to be an interest devisable-Marks and Marks, 1 Str. 134. Cases in Law and Equity, 342; Gurnel and Wood (d), C. B. 14 Geo. 2; devise to A., and if he dies before twenty-one, then to B. and his heirs. B. dies, and then the contingency happens by the death of A. before twenty-one. Determined, that this is an interest descendible to B.'s heir. I agree, that the possibility in the present case is not an interest assignable by conveyance; but it is devisable by will; Fitzgibb. 236, Lord Trevor's argument. It differs from a right of entry or of action. This is not a mere possibility, but coupled with an interest, Vau. 270-273. Uses after fees determinable are interests devisable. In Duke of Norfolk's Case, Lord Nottingham thought [ *226 ] *so; Pollexf. 88: It is an use in esse, though not executed; and therefore devisable by will. The statute of wills intended to restore the same devising power, as existed at common law before the statute of uses. A contingent use is devisable, though not grantable, because wills enure in a different way from deeds. Deeds must pass a present estate, or vested interest. But in wills, a contingent use existing in the testator may wait a future event. Sir F. Bacon, in his reading on the statute of uses, (Works, vol. 2, p. 80, 81, last edition), makes a distinction between naked rights and contingent uses. "As to the transferring uses, there is no action at law, &c." His reasoning is analogous to that of Lord Macclesfield in Marks and Marks. If the tenant in tail had died before the execution of the recovery, this contingent use must undoubtedly have failed; but as the contingency actually happened, the contingent use depending thereon must be served. And, if this interest be devisable, it is clearly devised by the words, "All my real estate;” for real estate is genus generalissimum, and has been allowed to comprehend even fee-farm rents (e).-3rd. As to the operation of the recovery when passed, it enures to substantiate the devise, and not to revoke it. I allow, that the severity of legal scholastic niceties has introduced revocations, where they were never meant by the parties; and that, as those cases are now established, they are not to be shaken. But the present case differs from them all. The estate of the testator was altered antecedent to the will, because,-1st, The recovery relates to the deed of bargain and sale.-2ndly, It relates to the first day 66 (c) 8 Rep. 94 b. (d) S. C. 8 Vin. Abr. 112, pl. 38, and cited 3 T. R. 94. (e) Countess of Bridgwater v. Duke of Bolton, 6 Mod. 106: see ante, 204, n. (©). |