1790.
scionable act of coercion, void of an legal foundation. The credit originally given by Willing & Morris had no possible relation to the legacy; nor can it fairly be presumed that the subsequent payment was made on account of that fund; for, it is that a balance of £276 should be advanced in consideration of a legacy amounting to no more than £150. The question, therefore, may reasonably and justly rest on this ground, that Willing & Morris, sensible of the hardship that would be done by retaining the commissions due to G. Inglis, and affected by the distresses of the brother of their late partner, freely paid the money, without relying on any other agreements for the payment of their debt; while if Reede & Forde, doubtful of the resources of G. Inglis, sold their goods to him on the credit of the legacy alone; and under these circumstances the claim of the latter must in law and equity be preferred.
For Willing & Morris, who were the real defendants, it was contended, that the offer to assign the legacy, and the payment of the commission in consequence of it (from which latter circumstance an acceptance of the offer was inferred) amounted to a compleat contract. The reimbursement of Mr. Coxe was clearly no evasion of that contract; but merely an acknowledgment of family obligation, accompanied also with a declaration also that nothing more should be paid on account of the the legacy. Wherever possession goes according to an agreement, the bargain shall be considered to be executed, although no papers have passed between the parties. 1 Vern. 363. and indeed the general rule is, that whatever, for a valuable consideration, is covenanted to be done, shall, in equity, be looked upon as done. 3. P. Wms. 215. 1. P. Wms. 277. But Willing & Morris, besides the conclusion from these authorities, as the surviving partners of S. Inglis, might reasonably presume, that no formal assignment was necessary, since the personal estate of the testator was involved in the joint stock of the company; and when they paid the commissions, they acquired, ipso facto, a right to retain the legacy that had been offered as an inducement for that payment.
Nor is there a want of that notice, which will satisfy the law upon this occasion. Mr. Coxe, the first assignee, was apprised in the very origin of the transaction, that there would be some difficulty in obtaining the legacy; and the executor, to whom he applied, declared, that no more than the amount of Mr. Coxe’s debt would be paid. If notice, therefore, was necessary, it is decided, that notice to a first purchaser is binding upon all who follow him. 2 Atk. 242.
But, it is certain, that whoever gets the verdict, an innocent person will suffer. The only question, therefore, is, whose right