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![handle is hein.slavery/ssactsengr0577 and id is 1 raw text is: 864 GASKELL V. MARSHALL 5 CAR. & P. 82.
that the false swearing should be perjury. This Act of Parliament appears to con-
template two cases-those of omission and those of commission; and I must consider
that the 71st section applies to those cases which are not included in the 70th. I
think that the defendant must be acquitted.
Verdict-Not guilty.
Adolphus and Follett, for the prosecution.
Busby, for the defendant.
[Attornies-Knight, and Drawbridge.]
Nov. 30th, 1831.
GASKELL, ADMINISTRATOR OF ISABELLA JACKSON, V. MARSHALL, KNT.,
AND ANOTHER.
(An intestate died in the month of August : her next of kin took out letters of ad-
ministration in the same month, and went and lived in her house till the month
of November, when the goods of the intestate in the house were seized under a
fieri facias against the administrator for a debt of his own :-Held, that an
action lay against the sheriff by the administrator, in his representative capacity,
for this seizure. But, semble, that, if the administrator had remained in pos-
session for a very long time, it would have been otherwise.)
[S. C. 1 Mood. & R. 132. Approved, Fenwick v. Laycock, 1841, 2 Q. B. 108.
Referred to, Re Morgan, Pillgrem v. Pillgrem, 1881, 18 Ch. D. 93.]
Trespass against the Sheriff of Middlesex, for taking furniture which had belonged
to the intestate at the time of her decease, and detaining it till a sum of money was
paid. Plea-Not guilty.
It appeared that the intestate died on the 13th of August 1830 ; and that, on the
20th of August, the plaintiff, being her nephew, took out letters of administration,
and went with his wife to live in the intestate's house, in which this furniture was.
It was distinctly proved that the furniture belonged to the intestate at the time of
her decease; and that it was taken by the defendants in the month of November
1830.
Gurney, for the defendants, opened, that the furniture was taken under a writ of
fierifacias, which had issued against the plaintiff for a debt of his own ; and he con-
tend-[32]-ed that, if an administrator, instead of disposing of the goods of his intestate,
used them as his own, and held himself out to the world as their owner, they might
be taken under an execution issued against him ; and he relied on the case of Quick v.
Staines, Knt. (1 B. & P. 293), where it was held, that, if the executrix use the goods
of her testator as her own, and afterwards marry, and then treat them as the goods of
her husband, she shall not be allowed to object to their being taken in execution for
her husband's debt.
Lord Tenterden, C. J.-I own that it strikes me that the marriage makes all the
difference between the two cases. I think that the time that the plaintiff had been
in possession is not sufficient to shew that he had made these goods his own. If the
plaintiff had been in possession of the goods for a very long time, it might have been
otherwise.
Verdict for the plaintiff (a).
Sir J. Scarlett and Platt, for the plaintiff.
Gurney, for the defendants.
[Attornies-IHewitt, and Smith & B.]
(a) In the case of Howard v. Jemmet, 3 Burr. 1369, Lord Mansfield said, If an
executor becomes bankrupt, the commissioners cannot seize the specific effects of his
testator, not even in money which specifically can be distinguished and ascertained
to belong to such testator ; and not to the bankrupt himself. In the case of Farr
and Others v. Newman, 4 T. R. 621, it was held that the goods of a testator, in the hands
of his executor, cannot be seized in execution in a suit against the executor in his own
right. But, in the case of Whale v. Booth, id. 625, n., Lord Mansfield said, The
general rule, both of law and equity, is clear that an executor may dispose of the
assets of the testator ; that over them he has absolute power ; and that they cannot
be followed by the testator's creditors. It is also clear, that, if at the time of aliena-
tion the purchaser knows they are assets, this is no evidence of fraud.](ViewImageLocal?handle=hein.slavery/ssactsengr0577&div=1&collection=&method=preview&ext=.png&size=3)