cited was from 1 Rol. Abr. (a), where it is said, "If the husband
"of an executrix sue with her for a debt due to her as execu-
"trix to J. S. and the wife die after judgment and before execu-
❝tion, the husband cannot have execution on the judgment; for
"though he was privy to the judgment, yet he shall not recover
"the debt, because that would belong to the succeeding execu-
"tor or administrator of J. S." Now if all the property
which an executor had, whether belonging to the testator or to
himself, were to be mixed in one undistinguished mass, such
cases never could have arisen. In that case, if the husband and
wife had sued for a debt due to the wife in her own right, the
husband might have had execution. As to the case cited from
3 Keble, my Brother Ashhurst has already observed, that that
reporter is not always accurate; and if any instance were
wanting to warrant the observation, the case referred to would
prove it; because he there referred to another case of his own
reporting, as of the preceding term, which is not there to be '
found. And indeed I cannot reconcile to my mind the prin-
ciple said to have been established in Norden's case, That an
executor shall be compelled to commit a devastavit nolens vo-
lens. But the principal case might, I think, have been cited by
the plaintiffs here; there, the Court "refused on motion to stay
"execution of goods in the sheriff's hand, being the wife's, as
"executrix to her former husband, and taken for the present
"husband's debt, because by payment of the debts of the former
"husband, the goods might be the wife's own; and the Court
"would not try this on affidavit." There the material question
was, Whether or not the wife had paid debts to the amount of
those goods? Because, if she had, they would have belonged
to her: but that the Court refused to try on a summary appli-
cation. But it is not said in that case that a creditor of the
testator came in before the execution was executed: but the
goods being found in the possession of the husband of the
executrix, and no competitor appearing to make any cross de-
mand, they were (for any thing that appeared to the contrary)
his own, and were therefore taken in execution for his debt.
But that case does not prove that, if there had been any com-
petition between the creditor of the executor and of the testa-
tor, and if the fair state of the case had been disclosed to the
sheriff, he must have taken the goods as belonging to the for-
mer. As little to the defendants' purpose also is the case of
Whale v. Booth. Lord Mansfield, in deciding that case, attended
(a) 889. tit. “Execution;" there being two pages of the same number.

to

1792.

FARR against NEWMAN.

1792.

FARR against NEWMAN.

to the justice of it; and seemed rejoiced to find that the law
and the justice of the case were not at variance. His Lordship
began with saying, "That the general rule of law and equity
66 was clearly settled; that an executor may alien the assets of
"the testator for a debt of his own; and that a creditor cannot
"follow them; and that it is no objection to the validity of the
"sale that the purchaser knew that they were assets." It is
absolutely necessary that he should have that power, in order
to convert the goods into money for the payment of debts.
His Lordship stated one exception, "where there was a contriv-
"ance between the executor and his creditor, to enable the
"former to commit a devastavit." Here indeed was no contriv-
ance between those persons: but the effect was the same; for
the attempt on the part of the creditor was to compel the exe
cutor to commit a devastavit, which is an exception to the ge
neral rule. Lord Mansfield then proceeded to say, that "when
"the executor had paid all the demands upon the testator, the
"assets belonged to him." But that cannot apply to this case;
where, so far from the testator's debts being all paid, it appears
that before the execution against the executor was executed,
this competition between the respective creditors arose; which
shews that the testator's effects were not become the property
of the executor, because the debts were not paid. His Lord-
ship then said, "When the effects were seized, the executor -
"might have disputed their being applied to satisfy his own
"debt." It is true that the executor may dispute it; and when
the objection is made, it controuls the prima facie evidence,
that the goods in the hands of the executor are his own. His
Lordship also added, that "the sale under the execution in
"that case could not be distinguished from an alienation by an
"executor." In general it cannot but it may be distinguished
when the seizure is made to answer the purposes of injustice.
I agree, therefore, with the reasoning of that case through-
out; and think that that case and the one in Keble afford a
strong argument in favour of the plaintiffs here. I am not
prepared to exclude from our consideration the decisions in
Courts of equity. Equitas sequitur legem. Where the law
is ineffectual, equity steps in to give redress, following however
the rules of law. And in Cowper v. Lord Cowper (a), Sir
Joseph Jekyll, in commenting on the jurisdiction of the Lord
Chancellor, said, that the discretion which was to be exercised
in that Court was to be governed by the rules of law and equity;
(a) 1 P. Wms. 753-

that

that in some cases it followed and assisted the law, by advancing the remedy; and that though in others it relieved against the abuse, or allayed the rigours of it, it in no case contradicted or overturned the grounds or principles of law. With regard to the case cited from 3 Lev. 204., where the silver cup was taken in the hands of the executor: the ground upon which the Court proceeded was, that they would intend the property altered after so long a possession by the executor: but there is, no ground here upon which we can intend an alteration in this property; but, on the contrary, that intendment is negatived, for it appears that the executor has not paid all the debts of the testator. The facts found by this verdict, instead of opening a door to let in the presumption that the testator's debts were paid, and that the goods were consequently become the property of the executor, absolutely exclude it. As to the expression cited from Shower, to shew that goods once seized cannot be seized again, it must mean, when they are legally seized; for if any thing happen to disaffirm the first seizure, and to shew that it was not legal, it is considered as no seizure in law; and the word seizure is in such a case misapplied.

I desire to be understood as not wishing in the least to abridge the powers of executors, or to shake the authority of a single determination; but leaving executors in the full possession of all the powers with which they were ever invested, I would say, "Let them execute their duty, and let their autho"rity cease where injustice begins."

1792.

FARR

against NEWMAN.

Per Curiam,

Judgment for the plaintiffs.

DUBERLEY against GUNNING.

Tuesday, May 8th.

tion for crimi

HIS action for criminal conversation was tried before Lord The Court will THIS not grant a new Kenyon, at the sittings for Westminster after last term; trial in an acwhen the defendant, in answer to the case proved on the part nal conversaof the plaintiff, gave evidence of many indecent familiarities tion, merely bebetween him (the defendant) and the plaintiff's wife in the pre- mages appear sence of her husband; from whence the jury were pressed to excessive. draw the inference of connivance on his part.

cause the da

to them to be

Lord KENYON, in summing up the evidence, told the jury, [Willes. 5776 East. 244.] That, if they were of opinion that the husband had consented to the infidelity of his wife, it took away altogether the ground Vide 4 Bar. of the action, and they should find a verdict for the defendant. Abr. 552.

1792.

DUBERLEY against

GUNNING.

If they thought that, though he had not gone that length, yet he had been guilty of gross negligence or inattention to her conduct, with respect to the defendant, that would go far in mitigation of the damages; and to this opinion he himself most strongly inclined. But if they saw no ground for imputing even such negligence to the plaintiff, then they were to assess what damages, under all the circumstances, he was entitled to. The jury found a verdict for the plaintiff, with 5000l. damages.

A rule was obtained to shew cause why the verdict should not be set aside, and a new trial had, on two grounds: 1st, As a verdict altogether against evidence: 2dly, On the ground of exces sive damages. It is unnecessary to enter into the detail and examination of the particular evidence given in the cause. On the first ground, Buller, J. alone was of opinion, That the verdict was wrong: the other three judges thought that the jury had, at all events, done right in finding a verdict for the plaintiff. As to the second point,

Erskine, Wood, and Shepherd shewed cause, contending, That in a case of this kind the question of damages was so exclusively within the province of the jury, depending upon a variety of considerations, many of them springing from the feelings of human nature, that the Court could not interfere to correct their opinion, without taking upon them the characters of jurors as well as judges. In all other cases where the Courts have granted new trials on the ground of excessive damages, there are certain criteria by which the propriety of the damages given may be estimated; and though possibly no exact line can be drawn, yet it may easily be seen whether the damages given be greatly disproportionate to the injury received, and its actual or probable consequences. But in a case like the present, where the spirit is principally wounded, and the future happiness of the sufferer destroyed, there is no standard by which the judges can ascertain the excess of the damages given; for admitting that the judges, had they been substituted in the place of the jury, would have given less, it does not follow that they would have decided more properly than the jury have done; nor would it be capable of ascertainment by reference to any known rule whether they had or not. But in this case, the constitution has relied upon the judgment of the jury, and not of the Court; and therefore it may fairly be presumed, that it was thought the best tribunal to which such a question could be referred: and the judges themselves have heretofore conceded this point to

the

the exclusive examination of the jury; for in Wilford v. Berkeley (a), upon a motion like the present, on the same ground of excess of damages, "The Court were clear and unanimous,

that, although there was no doubt of the power of the Court "to exercise a proper discretion in setting aside verdicts for ex"cessive damages in cases where the quantum of the damage

66

really suffered by the plaintiff could be apparent, or they "were of such a nature that the Court could properly judge of "the degree of the injury, and could see manifestly that the "jury had been outrageous in giving such damages as greatly "exceeded the injury; yet the case was very different where it "depended upon circumstances which were properly and solely "under the cognizance of the jury, and were fit to be sub"mitted to their decision and estimate: and they held the case "of criminal conversation with another man's wife to be of "this latter kind; for the injury suffered by the husband, and "the estimate of the damages to be assessed, must in their na"ture depend entirely upon circumstances, which it was "strictly and properly the province of the jury to judge of." The case of Chem v. Brigg, Mich. 6 Geo. 1. B. R. was also cited, as exactly similar in principle to the above determination. In Ducker v. Wood (b), where a new trial was moved for, on the ground of excessive damages in an action for an assault, the verdict being for 150l. the Court refused it. So they did in Redshaw v. Brook and Others (c), where 2001. damages were given against custom-house officers for entering a house to search for uncustomed goods; although it was stated that little or no damage was done, and the officers behaved well enough; and the Court thought the damages might be too large; yet they said, they could not draw the line to fix the measure of damages. And the Court held the same language in a similar case of Bruce v. Rawlins and Others (d). If the Court could interfere here, because they conceive the damages to be too great, they may on the same principle grant a new trial where they think the damages are too small; but that was never contended for.

Bearcroft, Mingay, Bower, and Baldwin, contrà, admitted, That in a case like the present it was necessary for the party complaining of the excess of damages to make out a very strong case for relief. But if such a case were made out, as they contended it was here, if the verdict were admitted to be unjust,

1792.

DUBERLEY

against GUNNING

(a) 1 Burr. 609.

(6) Ante, I vol. 277.

(c) 2 Wils. 405.

(d) 3 Wils. 61.
and