divers parcels of goods and chattels, and showed what in certain, and the value, as of his proper goods, and that after his death the defendant received of one I. D. seven pounds of a debt which he owed to the said H. W. in his lifetime, for which he made him an acquittance; and that also the defendant, after the death, and before the writ purchased, took and had in his hands all and singular the goods and chattels aforesaid, and the said seven pounds used, occupied, and disposed of at his will and pleasure to his own advantage and profit. And whether this use, occupation, and disposition be an administration in law, the jury pray the advice of the court, &c. and if it be, then they find that the defendant administered as executor, and assess damages and costs, &c." And it was debated at bar and at bench; and it seemed to us three, s. H. BROWNE, A. BROWNE, and ME, that it is sufficient administration. And first, the definition of the word administration is, an ordering, making, or a disposition, and more properly applied to an officer. And for a ground of the same argument I intend, that by occupation or possession, the goods of the dead give notice of the person who shall be charged as administering, be he ordinary or executor, and draw the charge to him, as debt against the dean only, guardian of the spiritualities during the vacancy of the fee, ad cujus manus bona intestatoris devenerunt, without the chapter, 17 E. 3 [Fitz. Ab. Tit. Bre. 822], T. 16 E. 2 [fol. 490], where the devenerunt was the issue. And see the Register, fol. 141, and 35 H. 6 [42 pl. 4], against the abbot of Saint Albans to whose hands, &c. and against one executor only, who had possession of the goods, the action well lies, &c. And in M. [T.] 8 E. 3 [52 b, pl. 42] in dower against one executor only who had the sole guardianship, it names him guardian and not executor; and that possession charges one as executor de son tort demesne, see 5 E. 4, in the Long Report, fol. 72, and 9 E. 4 [33 a, pl. 7], in debt against the executors, and 35 H. 6, fol. 42, by Moyle, and 50 E. 3, fol. 7 [b, pl. 15], and 33 H. 6 [31 b, pl. 5], where the wife took more of her apparel than was fitting for her degree without legacy or license, and it was holden an executorship de son tort demesne. And yet some possession is colorable, and still none in law to charge, &c. as expenses about the funeral; one made coadjutor or overseer; one who has literas ad colligendum;2 a man who is made executor by a will, which will afterwards is disproved by the proving of one later; and a feme covert made executrix who does not intermeddle, &c. and renounces after the death of her husband: and all those cases where a man has color by any authority and law to intermeddle, he may plead the special matter, sans ceo that he administered in any other manner, &c. But where he claims title or interest in the goods as by gift of the testator in his life, he shall not say sans ceo that he administered any other goods or in any other manner, but absq. hoc quoad ut executor, 9 E. 4 [33 a, pl. 7], 10 H. 7, fol. 28 [b, pl. 19]. Also the plaintiff 1 See Camden v. Fletcher, 4 M. & W. 378 (1838). — ED.

1

2 See Anon, Dyer, 256 a (1566). — Ed.

would be without remedy for his debt if he should not have the action above. And if a lawful executor mal-administer, s. by converting the goods to his own use, he shall be charged and shall be an executor by tort, and without authority by such malfeasance in many cases to avoid the charge would be unreasonable: and suppose the defendant himself in pleading had confessed the matter above found by the verdict sans ceo that he administered in any other manner, would he not be condemned? Credo quod sic, &c. And the receipt of the debt above is plainly a thing done as executor, for by no other color could he demand it; wherefore, &c. And afterwards before the next term, the defendant died before judgment given, wherefore the whole matter fell. But CATLYN, SAUNDERS, WHIDDON, and WRAY, were of opinion with the three judges above, H. 15, of the present Queen [Dyer, 225 b, pl. 8]; but MANWOOD, e contra.1

STAMFORD'S CASE.

COMMON PLEAS. 1574.

[Reported 2 Leon. 223.]

THE case was, A. took a wife, and afterwards married Elizabeth Stamford, living his first wife, and by deed gave part of his goods to the said Elizabeth; and as to the residue of his goods, being but of small value, he made the said Elizabeth his executrix, and died; she refused the executorship, for which the ordinary committed administration to B. Gawdy, Serjeant, asked the advice of the court, against whom the action of debt should lie? for, if the creditor impleadeth the administrator, he hath not assets; if the executrix herself, she will plead that she hath renounced the executorship, and that administration is committed to B. And the opinion of DYER, Justice, was, That the gift is void by the common law, and also by the Statute of 13 Eliz., and then, if the gift be void any way, the creditor may have an action of debt against the said Elizabeth as executor of her own wrong: And see that such a gift is void by the common law, 43 E. 3, 2. And by MANWOOD, Justice, He who takes the goods of the dead, shall not be charged as executor of his own wrong, unless he doth something as executor: as to pay debts, make acquittances, &c. See 41 E. 3, 31 ; 32 H. 6, 7. DYER, If one takes the goods of the dead, and converteth them to his own use, he is chargeable as executor, and so it hath been adjudged in the time of this Queen, in the case of one Stokes, which was affirmed by Bendloes and Harper. See now Co. 2, Part 53,

1 See Bacon v. Parker, 12 Conn. 212 (1837); Taylor v. Moore, 47 Conn. 278 (1879). The executor de son tort of A.'s executor is executor de son tort of A. Meyrick v Anderson, 14 Q. B. 719 (1850).

Reade's Case; where no lawful executor, or administrator is, there, if a stranger takes the goods of the dead into his possession, the same is a good administration to charge him as executor of his own wrong.

DEBT against him as executor of Tyrrel. The defendant pleads that Tyrrel died intestate, and that certain of his goods came to the defendant's hands, and afterwards administration was committed to J. S. to whom he had delivered the said goods. — PER CURIAM. It is not any plea; for if the administration had been committed to him, it would not have purged the first tort. So here, although administration is committed to a stranger, in regard that he hath once made himself chargeable to the plaintiff's action, as being executor de son tort, &c., he shall never afterwards discharge himself by matter ex post facto. Wherefore, &c. Adjournatur. - Et vide 21 Hen. 6, pl. 1; 8, 9 Edw. 4, pl. 47; 2 Rich. 3, pl. 20.1

READ'S CASE.

COMMON PLEAS. 1604.

[Reported 5 Co. 67.]

READ brought an action of debt against Carter executor of Yong, which plea began in the Common Pleas, Hil. 44 Eliz. Rot. 401. The jurors found, that the said Yong made his testament and last will, and made one A. his executor; and the day of his death was possessed of goods above the value of the debt in demand, and died; and before the will was proved the defendant took the testator's goods into his possession, and intermeddled with them; and afterwards, and before the writ

1 “If, indeed, previously to an action brought against the defendants as executors de son tort, they had paid the money over to the rightful administrator, that would have been a good defence; because then they would have applied the money properly.”. Per BULLER, J., in Padget v. Priest, 2 T. R. 97, 100 (1787).

See Anon., 1 Salk. 313, p. 467, note, post; Curtis v. Vernon, p. 469, post; 2 H. Bl. 18 (1792).

So if an executor de son tort can prove a settled account with the rightful representative, before suit, it is a defence to a bill in equity for an account. So held by Wood, V. C., in Hill v. Curtis, L. R. 1 Eq. 90 (1865). And on the jurisdiction of equity over suits against executors de son tort, see Coote v. Whittington, L. R. 16 Eq. 534 (1873); Rowsell v. Morris, L. R. 17 Eq. 20 (1873); In re Lovett, 3 Ch. D. 198 (1876).

purchased, the will was proved; and if on this matter the defendant should be charged as executor of his own wrong was the question. And on great deliberation judgment was given for the plaintiff. And in this case these points were resolved.

1. When a man dies intestate, and a stranger takes the intestate's goods and uses them, or sells them, in that case it makes him executor of his own wrong. For although the pleading in such case be, that he was never executor, nor ever administered as executor; and therefore it was objected, that he ought to pay debt or legacy, or do something as executor: yet it was resolved, and well agreed, that when no one takes upon him to be executor nor any hath taken letters of administration there, the using of the goods of the deceased by any one, or the taking of them into his possession, which is the office of an executor or administrator, is a good administration to charge them as executors of their wrong; for those to whom the deceased was indebted in such case have not any other against whom they can have an action for recovery of their debts.

2. When an executor is made, and he proves the will, or takes upon him the charge of the will, and administers in that case, if a stranger takes any of the goods, and, claiming them for his proper goods, uses and disposes of them as his own goods, that doth not make him in construction of law an executor of his wrong, because there is another executor of right whom he may charge, and these goods which are in such case taken out of his possession after that he hath administered, are assets in his hand: but although there be an executor who administers yet if the stranger takes the goods, and claiming to be executor, pays debts, and receives debts, or pays legacies, and intermeddles as executor, there, for such administration as executor, he may be charged as executor of his own wrong, although there be another executor of right; and therewith agreeth 9 E. 4, 13.

3. In the case at bar, when the defendant takes the goods before the rightful executor hath taken upon him, or proved the will, in this case he may be charged as executor of his own wrong, for the rightful executor shall not be charged but with the goods which come to his hands after he takes upon him the charge of the will. Note, reader, these resolutions, and the reason of them, and by them you will better understand your books, which otherwise seem prima facie to disagree. 41 E. 3, 13 b; 50 Ed. 3, 9; 6 H. 4, 3 a; 11 H. 4, 83 b, 84 a; 13 H. 4 b; 8 H. 6, 35 b; 19 H. 6, 14 b; 21 H. 6, 26 & 27; 32 H. 6, 7 a; 33 H. 6, 21; 21 E. 4, 5 a; 20 H. 7, 5 a; 26 H. 8, 7 h, 8 a; 1 Eliz. Dyer, 166; 9 Eliz. Dyer, 255. And so the quare in 1 Maria Dyer, 105, 203, well resolved.1

4,

1 ANONYMOUS, 1 Salk. 313 (1702). — Per HOLT, C. J. If H. gets goods of an intestate into his hands after administration is actually granted, it does not make him executor of his own wrong; but if he gets the goods into his hands before, though administration be granted afterwards, yet he remains chargeable as a wrongful executor, unless he delivers the goods over to the administrator before the action brought, and then he may

ALEXANDER brought debt on a bond of £40 against Lane as executor of P. The defendant pleaded, that P. in his lifetime was indebted to him in £40 just debt, and that goods to the value of £10 came to the defendant's hands, which he retained towards the satisfaction of his own debt; and averred, that nulla bona plura above goods to the value of £10 came to the defendant's hands to be administered, &c. The plaintiff replied, and showed that the defendant is executor de son tort to P. et quod habet multa alia bona of P. administrand. apud S. in the same county of Norfolk, and concluded, et hoc paratus est verificare, &c. The defendant rejoined, and demanded judgment, if the plaintiff should be received to say, that the defendant is executor de son tort; forasmuch as by the declaration he has affirmed him to be executor testamenti; and thereupon the plaintiff demurred in law. And as to the matter in law the whole court was with the plaintiff; for he may well reply, that the defendant is executor de son tort, notwithstanding the declaration; for there is no other form of declaration, as it is adjudged in Coulter's Case, 5 Rep. fol. 30. But PER TOT. CUR. the whole plea is discontinued; for the defendant having pleaded as to goods to the value of £10, which he retained for a debt, and that he had not plura bona administrand., that is an offer of a good issue; then when the plaintiff replies, that he has plura bona, &c., and concludes et hoc paratus est verificare, it is not good; for he ought to have said, et hoc petit quod inquirat. per patriam; for now there is a surplusage of goods denied by the defendant, and urged by the plaintiff, which ought to come in issue, but cannot by reason of the ill conclusion. But in the same term between West plaintiff, and Lane defendant, where West demanded but £4 debt against Lane as executor, ut supra; and all the residue of the plea was, ut supra, judgment was given for the plaintiff, because the defendant had confessed goods in his hands to the value of £10, which is more than the debt demanded; and therefore forasmuch as by judgment in law an executor de son tort cannot retain to pay himself, although the other proceedings in the plea are ill, yet all that is out of the case, and judgment shall be given on the defendant's confession, and so it was. Quod nota. Yelverton of counsel pro querente.1 plead plene administravit. Vide 5 Co. 33 b, F. N. B. 44. But if he takes upon him to act as executor, he is chargeable to all events.

But see Hall v. Elliot, Peake, 86, 87 (1791). One who wrongfully intermeddles after the death of the lawful executor or administrator is an executor de son tort. Cottle v. Aldrich, 4 M. & S. 175 (1815); Williams But see Tomlin v. Beck, T. & R. 438 (1823).

v. Heales, L. R. 9 C. P. 177 (1874).

1 See Prince v. Rowson, 1 Mod. 208 (1675).