enforce them. The only question here is, whether the plea is proved. The jury are entitled to call in aid their knowledge of the usages of society; and if this woman was a prostitute, and was known to be such, and wanted an ornamental brougham, there is very little doubt that she wanted it for the purpose of plying her illicit trade. That was so found in effect by the jury, and I think there was sufficient evidence to support that finding. Then as to the other question, whether it was necessary that the plaintiffs should look to the profits of the business carried on by means of this brougham in order to constitute a turpis causa, I have no doubt whatever that the plaintiffs knew very well that the defendant's only means of paying would arise out of her trade; and Lord Ellenborough (as it seems to me) only makes use of the expression in Bowry v. Bennett (1) as to "expecting to be paid from the profits" as an illustration of what amounts to appearing to do something in furtherance of the prostitution.

BRAMWELL, B.-There is no doubt this woman was a prostitute, and that the plaintiffs knew it. At any rate the jury found that they did. Then the only other fact in dispute was, for what purpose did she hire the brougham, and for what purpose did they let the brougham? As to the purpose with which she hired it, there was no other means of knowing, excepting that the jury might, as they did, apply their knowledge of the affairs of life to this unlawful transaction. For that reason, it seems to me, they might infer that this woman was hiring the brougham for the purpose for which they said she did hire it, and of which the jury shewed their intelligent appreciation by using the expression "for display." I take it, therefore, that she was a prostitute; that the plaintiffs knew it; and that she hired this brougham for the purpose of display, that is to say, for the purpose of pursuing and following her calling. The difficulty I had was this,-although she hired it for that purpose, can it be truly said the plaintiff's let it for that purpose? I should continue to feel this difficulty, as a matter of reasoning, were it not for Cannan v. Bryce (5) and M'Kinnell v. Robinson (6), where the Court decided that it is not necessary that it should be part of the bargain that the subject-matter of the supposed unlawful contract should be unlawfully used, but

that it is enough that it was handed over to the borrower or hirer, and that he should apply it or have the purpose or intent of applying it to an illegal use. It seems to me then that we are precluded by authority in this case; and it being made out that the defendant was a public prostitute, that the plaintiff knew it, and that she hired the brougham for the purpose of her prostitution, these cases seem to shew that the defendant had a good defence to the action. As to the allegation in the plea, which I said at the trial need not be proved, namely, that the plaintiffs expected to be paid out of the receipts of prostitution, it must not be supposed we are overruling anything decided by Lord Ellenborough. It is manifest to me that Lord Ellenborough could not have meant to lay down that the thing could not be illegal, unless there was a stipulation that the payment was to be out of the proceeds of the illegal matter, because, if so, he would have said in Bowry v. Bennett, that the bargain was that the money was to be paid out of the proceeds. If a man and woman had both been engaged in hiring this carriage, and the man had hired the brougham for the woman, then although she put it to the same purpose, yet, inasmuch as he was to pay from his own funds, the transaction would be perfectly lawful according to the plaintiff's argument. But how can it be that, if the same thing be done with the same purpose, it should be lawful when done by the man and not lawful when done by the woman? It seems to me that this allegation was not a necessary part of the plea, and that it was, therefore, not necessary to prove it.

POLLOCK, C.B.-As to Cannan v. Bryce (5), if money be lent with a doubt as to whether it is to be applied to an illegal purpose or not, the question must be left to the jury. If it be borrowed generally, but afterwards applied to an illegal purpose by the borrower, the case of Cannan v. Bryce (5) would not apply. That case rests on this, that the money was borrowed for the especial purpose of satisfying an illegal design.

Rule discharged.

Attornies-E. L. Levy, for plaintiffs; Lewis & Lewis, for defendant.

1866. April 17.

}

BOLINGBROKE AND WIFE, administratrix, &c., v. KERR.

Practice Misjoinder of Plaintiffs Administrator-Assets.

B. and his wife, who was administratrix of her father, carried on the father's business together for the benefit of his estate; and two years after the intestate's death goods were supplied to the defendant, which were made of materials purchased with money received by the wife from the estate:-Held, that the debt due from the defendant was not "assets," and that the wife could not sue in her representative character to recover the price of the goods.

This action was brought by Edward Bolingbroke and Harriet Ann, his wife, the said Harriet Ann being administratrix of James Augustus Heavens, deceased; and the declaration was for goods sold and delivered and work done, &c., "by the said Harriet Ann, as such administratrix as aforesaid."

At the trial, before Bramwell, B., at the Middlesex Sittings in Hilary Term, 1866, it appeared that the plaintiff Harriet Ann married the plaintiff Edward Bolingbroke in 1860, shortly after the death of her father, the intestate; and that she and her husband carried on the father's business together for the benefit of the deceased's estate, and that the goods, &c., which were the subject-matter of the action, had been made from materials purchased with money which the wife had received from the estate, and were supplied to the defendant in September, 1862.

Bramwell, B. thereupon ruled that the wife was improperly joined as a plaintiff, and directed a nonsuit, reserving leave to the plaintiffs to move to set it aside, and enter a verdict for 731., the Court to make such amendments as the Judge had power to make at Nisi Prius.

Holl having obtained a rule accordingly, E. C. Willoughby now shewed cause.The goods were not sold by the wife in her capacity as administratrix, but merely as agent for her husband. They never were the goods and chattels of the intestate "whilst living and at the time of his death" within the meaning of the ordinary NEW SERIES, 35.—EXCHEQ.

grant of letters of administration (1). The contract here arose two years after the intestate's death, and was therefore entirely personal to the administratrix. The case differs from Werner v. Humphreys (2), where the work had been partly done in the intestate's lifetime. The rule deduced from that case and Edwards v. Grace (3) is, that the executor can only sue in his representative character when the money recovered would be assets. Gibblett v. Read (4) may seem at first sight in favour of the plaintiffs, but it does not really touch the point; for the goods supplied to the defendant Kerr never were the intestate's goods, and could not be

assets.

[He also contended that this was not a case for amendment, under the 35th section of the Common Law Procedure Act, 1852, citing Bradworth v. Foshaw (5) and Garrard v. Giubilei (6).]

Holl, in support of the rule.-According to Gibblett v. Read (4) and other cases in Williams on Executors (7), the money recovered here would be "assets"; and therefore the wife may maintain the action in her representative capacityCowell v. Watts (8).

[POLLOCK, C.B.-The money might be "assets" in equity, without giving the administratrix the legal right to sue.]

Holl also contended that an amendment could be made under the 222nd section of the Common Law Procedure Act, 1852.

The COURT, however, intimated very clearly that in their opinion the wife ought not to have been joined as plaintiff, and that the nonsuit was right; and the plaintiff thereupon, at the suggestion of the

(1) For this form, see 1 Williams on Executors, 5th edit. 392.

(2) 2 Man. & G. 853; s. c. 10 Law J. Rep. (N.S.) C.P. 214; 1 Williams on Executors, 788.

(3) 2 Mee. & W. 190; s. c. 6 Law J. Rep. (N.S.) Exch. 68; 1 Williams on Executors, 787.

(4) 9 Mod. 459; s. c. 2 Williams on Executors, 1498.

(5) 10 W. Rep. 760; and Day's Common Law Procedure Acts, p. 165.

(6) 31 Law J. Rep. (N.8.) C.P. 131, 270.
(7) Vol. 2, pp. 1496, et seqq.
(8) 6 East, 405.

T

H, by will dated in 1851, left certain real estate to his wife C, for life, giving her a general power of appointment. He died in 1856. C. exercised her power of appointment in 1858, in favour of E, the wife of the testator's nephew:-Held (dubitante Martin, B.), that E.'s interest in the annuity was α "succession" within the meaning of the Succession Duty Act, 1853, and that she took from C. as "predecessor," and was therefore liable to pay a duty of 10l. per cent.

In re Barker (1) commented upon.

the

Rear-Admiral Henry Fanshawe, by his will, dated the 14th of April, 1851, limited certain real estate to the use of his wife, Caroline Fanshawe, for life, with remainder to such uses as she should appoint; and in default of appointment, to certain uses for the benefit of his nephews, Charles Simon Faithful Fanshawe and John Faithful Fanshawe, and their respective issue male.

Rear Admiral Fanshawe died on the 9th of August, 1856, after the time appointed for the commencement of the Succession Duty Act, 1853, without having revoked or altered the before-stated disposition of his real property; and upon his death, his widow by reason of such disposition became beneficially entitled in possession to the said real property during her life; and afterwards, in exercise of her power of appointment, by a certain deedpoll, dated the 3rd of August, 1858, she limited the lands to the use and intent that the defendants, and the survivors and

(1) 30 Law J. Rep. (N.S.) Exch. 404.

survivor of them, &c. should, during the lives of Elizabeth Fanshawe, the wife of the said John Faithful Fanshawe, and their children, and the life of the longest liver of them, receive yearly an annuity of 2007. free from deduction, to be charged upon the same lands, upon trust to pay the same to the said Elizabeth Fanshawe during her life for her separate use.

Caroline Fanshawe, the admiral's widow, died in 1863, leaving the said Elizabeth Fanshawe surviving her; and the defendants on her behalf became entitled to the receipt of the annuity of 2007.

The Crown claimed duty in respect of the annuity, on the ground that the interest of Elizabeth Fanshawe in the annuity was a "succession" within the meaning of the Succession Duty Act, 1853; and, further, that the proper duty was 10. per cent, inasmuch as the interest was derived from Caroline Fanshawe (the widow and appointor) as "predecessor," a stranger in blood to both Elizabeth Fanshawe and her husband (2).

(2) The 2nd section of the Succession Duty Act is as follows: "Every past or future disposition of property, by reason whereof any person has or shall become beneficially entitled to any property, or the income thereof, upon the death of any person dying after the time appointed for the commencement of this act, either immediately or after any interval, either certainly or contingently, and either originally or by way of substitutive limitation, and every devolution by law of any beneficial interest in property, or the income thereof, upon the death of any person dying after the time appointed for the commencement of this act, to any other person, in possession or expectancy, shall be deemed to have conferred or to confer on the person entitled by reason of any such disposition or devolution a 'succession'; and the term 'successor' shall denote the person so entitled; and the term 'predecessor' shall denote the settlor, disponer, testator, obligor, ancestor or other person from whom the interest of the successor is or shall be derived."

The 4th section is: "Where any person shall have a general power of appointment, under any disposition of property taking effect upon the death of any person dying after the time appointed for the commencement of this act, over property, he shall, in the event of his making any appointment thereunder, be deemed to be entitled, at the time of his exercising such power, to the property or interest thereby appointed as a succession derived from the donor of the power; and where any person shall have a limited power of appointment, under a disposition taking effect, upon any such death, over property, any person taking any property by the exercise of such power shall be deemed to take the same as a succession derived from the person creating the power as predecessor."

The defendants resisted, on the ground that the interest of Elizabeth Fanshawe in the annuity was not a "succession" within the meaning of the Succession Duty Act, 1853; and, further that if it were, her interest was not derived from Caroline Fanshawe, but from the testator RearAdmiral Fanshawe, and that therefore the proper rate of duty was 31. per cent. only.

The Attorney General and The Solicitor General (Locke and Pemberton with them), for the Crown.-Caroline Fanshawe the widow and the donee of the power would have been liable to succession duty, but that she stood in the relation of wife to the testator; and by exercising her power of appointment she created a new succession, by virtue of which she must be regarded as the "predecessor" of Elizabeth Fanshawe. Had the widow given the property de suo, Elizabeth would have had to pay 107. per cent., being a stranger in blood to the widow; and the same duty must be paid here, notwithstanding that the annuity is given in exercise of a power. To prevent technicality, the legislature says that, though there be apparently only one operation, there are in fact two operations constituting the succession. And this is clearer still from analogy to the Legacy Duty Acts, which form the foundation of the Succession Duty Act and are in pari materia with it. Under the 36 Geo. 3. c. 52. ss. 7, 18, legacy duty is payable both by the donee of the power and by the appointee-Drake v. the Attorney General (3); and the 4th section of the Succession Duty Act (2) has an effect corresponding to that of the 18th section of the Legacy Duty Act- The Attorney General v. Gardner (4) and In re Wallop's Trusts (5).

[MARTIN, B. referred to the 33rd section (6).]

(3) 10 Cl. & F. 257.

(4) 32 Law J. Rep. (N.s.) Exch. 84.
(5) 33 Law J. Rep. (N.S.) Chanc. 351.

(6) This section enacts, that "where the donee of a general power of appointment shall become chargeable with duty in respect of the property appointed by him under such power, he shall be allowed to deduct from the duty so payable any duty he may have already paid in respect of any limited interest taken by him in such property."

That section would have applied if the testator and Caroline Fanshawe had not been husband and wife. This case is not like Lovelace's case (7), The Attorney General v. Lord Braybrooke (8) and Barker's case (1), which were not within the 4th section at all, and have therefore nothing to do with this. In Barker's case (1) there was a power subsisting in 1850, three years before the passing of the act, and the 2nd section (2) applied; whereas this is the case of a person having a power of appointment taking effect after the passing of the Succession Duty Act, and therefore clearly within the 4th section.

Bovill and Hannen, contra.-Caroline Fanshawe had no "property" in anything but the life estate which her husband gave her, and the exercise of the power by her was not a "disposition" within the meaning of the Succession Duty Act. It could not be the intention of the legislature that two duties should be payable in respect of one interest. The Legacy Duty Acts have nothing to do with the case, their language being entirely different from that of the Succession Duty Act. The whole scope of the act is not to create a property, but simply to define a "succession" for the purpose of imposing a duty on successions, and the duty here (if any) is not imposed on the person taking under the appointment. The effect of the 4th section is, that in the case of a general power of appointment, the person exercising the power is to pay the duty; whereas when the power is limited, the appointee pays; and in both cases the succession is to be deemed a succession from the creator of the power-The Attorney General v. Lord Braybrooke (8). And in Lovelace's case (7) Lord Justice Turner says, that "the express provision of the 4th section, that the donee of a power should be a successor, would in the cases in which it applied override the provision in the 2nd section, placing the appointee in that position." Again, if any duty at all be payable by Elizabeth Fanshawe, then the Court is bound by the ratio decidendi in Barker's case (1), which shews that the rate must be 37. per cent. The act is

(7) 28 Law J. Rep. (N.s.) Chanc. 489.

(8) 5 Hurl & N. 488; s. c. 29 Law J. Rep. (N.S.) Exch. 283: and in error, 31 Law J. Rep. (N.S.) Exch. 177.

constructed on the hypothesis that there may be several successions, and the 4th section is merely intended to hit the case where a donee might have escaped duty but for that section. It says that the donee takes a succession-from whom he takes it is not the question. The first part of the 4th section deals with the succession acquired by the donee of a general power when he exercises that power. The second branch deals with the succession of the appointee of a limited power; but the case of an appointee under a general power acquiring a succession by the exercise of that power-even if that be the case of Elizabeth Fanshawe-is not at all touched by the 4th section, but is left to the operation of the 2nd, and therefore according to the ordinary fundamental rule of construction, the appointee takes as though the limitation in her favour created by the exercise of the power had been introduced into the instrument conferring the power.

The Attorney General, in reply, was stopped by the Court.

[The following cases were also mentioned during the argument-In re Capdevielle (9), The Attorney General v. Brackenbury (10), The Attorney General v. the Earl of Sefton (11), The Attorney General v. Floyer (12) and The Attorney General v. Partington (13).]

POLLOCK, C.B.-I am of opinion that in this case the Crown is entitled to duty at the rate of 10l. per cent. I think that In re Barker has nothing to do with the present case. In that case the power was created before the act came into operation, and therefore the 4th section had no effect, and we had nothing to do with it at all; whereas on the present occasion we have.

The act of parliament appears to me to have been remarkably well drawn. I think very few public acts are entitled to so much commendation, in shewing a perfect acquaintance with the subject-matter dealt with, and with the means of producing the results which were obviously in the inten

(9) 33 Law J. Rep. (N.s.) Exch. 306. (10) 32 Law J. Rep. (N.s.) Exch. 108. (11) 32 Law J. Rep. (N.s.) Exch. 230. (12) 31 Law J. Rep. (N.s.) Exch. 404. (13) 33 Law J. Rep. (N.s.) Exch. 281.

tion of those who framed the law. The real property law of this country is perfectly well known to be extremely artificial, creating an apparent difference, and professing to create a great difference, where in substance and in reality there is none,—making a difference between an estate left to a man and his heirs, and an estate left to a man for his life, with power by deed to dispose of the reversion, which he might therefore instantly dispose of by himself, giving himself the entire fee simple. The law makes a distinction between the one and the other properly enough, because in the one the man is required to do a certain act before he can take anything but the life estate.

Here the testator left to his widow an estate for life, with power by deed to dispose of the remainder. A person to whom an estate is so left may, no doubt, say, "I want nothing more than the estate for life, and I shall not encumber myself with anything else." A person in that case will be liable to one kind of succession duty, payable on the estate for life. But if the person having the power by deed to dispose of the remainder choose to do so, the act then says, "You shall be considered, co instanti, as having taken an estate in fee simple, for you have exercised your power in favour of yourself, you have done an act shewing that you meant to take the benefit of being owner in fee simple, and you shall be considered as having taken it as if it had so been given to you; and you shall pay a certain duty accordingly."

It appears to me that, therefore, Caroline Fanshawe became exactly in the same position as if the whole estate had been left to her; for the moment she exercised the right to dispose of the estate, she took it as if she had taken the whole from her husband.

If the case had not fallen within the 4th section, very likely 31. per cent. is all that would have been claimed; but it is within the 4th section, and the consequence is that the wife of the testator in reality and in substance took the whole property; and it is she who gives it, and not the creator of the power; and therefore the appointee takes under Mrs. Caroline Fanshawe, who was no blood-relation to her, and the rate of duty is 107. per cent.