VAUGHAN v. BROWNE.

KING'S BENCH. 1739.

[Reported 2 Stra. 1106.]

THE defendant is sued as executor; and pleads a judgment to himself in the life of the deceased, and a retainer; the plaintiff replies, that he was executor only de son tort: and the defendant, by way of plea puis darrein continuance rejoins, that he has since obtained letters of administration. And upon demurrer it was objected, that this is to abate the plaintiff's writ, which was well brought by matter subsequent not depending on any act of the plaintiff's: and that the rejoinder was a departure from the plea. But the COURT held, it was well enough; for the first plea does not say there was a will, and the defendant could not at that time do otherwise than admit an acting as executor. And they said it would be very hard to lay it down, that if a man who sues for administration is opposed, and the cause runs out into any length, that the acting pendente lite should be construed such a wrongful executorship, as can never be purged, so as to give him the benefit of retaining: besides these pleas puis darrein continuance begin with a relicta verificatione of the former; which shows it may be departed from. The defendant had judgment.1

CASE on promises by the testator. Pleas, First, Ne unques executor. Secondly, Plene administravit. Thirdly, that Palmer died intestate, and that the defendant never was executor, nor ever possessed any of his goods, save as executor of his own wrong; that after Palmer's death, and before the 14th of May, 1789, administration was granted to his widow, S. Palmer; and that on the 15th of May, 1789, the defendant delivered over to the administratrix all the goods, &c., belonging to the intestate which came to his hands. Fourthly, that the defendant never was executor, &c., save as executor of his own wrong; that administration was granted to S. Palmer (as before); that the defendant recovered £3000 on a bond in this court in the 1 So Andrew v. Gallison, 15 Mass. 325, n. (1818). But see Whitehead v. Sampson, 1 Freem. 265 (1679).

intestate's lifetime; that no goods or effects of the intestate ever came into the defendant's possession, except goods of the value of £794 13s. 9d., which are not sufficient to satisfy his said debts; and that the administratrix on the 15th of May, 1789, assented to his retaining those goods in satisfaction of his debt.

To the two last pleas there was a general demurrer, and joinder in demurrer.

Wigley, for the demurrer.

Wood, contra.

LORD KENYON, C. J., said, They had looked into the authorities which were cited on the part of the defendant, but that they did not establish the propositions for which they were adduced. The case in 1 Sid. 76, is reported in a confused manner; but it concludes with saying, "that an executor de son tort cannot pay himself." Now that goes the length of deciding the present case. And indeed the cases cited from Freem., Yelv., Moor, Mod., and Strange, all prove the same point, that an executor de son tort cannot retain for his own debt. They also take the distinction between such an executor and an executor de son tort afterwards legalizing his own wrong by taking out letters of administration. The case in Strange shows this matter very clearly; where the court said it would be extremely hard that, if a person, entitled to administration, is opposed in the ecclesiastical court, and does any acts pendente lite to make himself executor de son tort, those acts should not be purged by his afterwards obtaining letters of administration. And they added that the granting administration legalizes those acts which were tortious at the time. With respect to the first point in this case, the opinion of Lord Chief Justice Holt in Salk. 313, is decisive; where he says, "If H. get the goods of an intestate into his hands, and administration be granted afterwards, yet he remains chargeable as a wrongful executor, unless he deliver the goods over to the administrator before the action is brought, and then he may plead plene administravit." From all the authorities it is clear, first, that an executor de son tort must deliver over the goods of the intestate to the rightful administrator before an action is brought against him; and secondly, that, though he be a creditor of a superior nature, he cannot retain in satisfaction of his own debt. Therefore we are of opinion that both these pleas are bad; and consequently there must be

Judgment for the plaintiffs.1

1 Judgment was affirmed in the Exchequer Chamber, 2 H. Bl. 18 (1792).

ASSUMPSIT for goods sold and delivered to the defendants.

Plea of, 1st, Ne unques executor. 2d, No assets come to the hands of the defendants.

The case in evidence was, that Peat the deceased, in his lifetime, being the owner of a certain ship, and having occasion for sails for her, they had been furnished by the plaintiff, who was a sail-maker, and they were not paid for at the time of his death; that after the death of Peat, the defendant had possessed himself of the ship, on which he claimed a lien; and the object of the action was to charge him for the price of the sails, as executor de son tort.

The delivery and price of the sails was proved.

Mingay, for the defendant, stated his defence to be, that every interference of a person with the effects of a person deceased would not make him executor de son tort, provided it was such interference as was consistent with a legal right of possession, which he claimed; that as to the possession of the ship on the present occasion, the defendant had been the ship's husband, and had taken possession of the ship by virtue of a bona fide assignment made to him by Peat, the deceased, in his lifetime.

He then gave in evidence the instrument by which the defendant was appointed the ship's husband. He afterwards proved, that the captain, having possessed himself of the ship, in Peat's lifetime, a suit had been instituted in the Admiralty by Peat, at the defendant's expense, to recover her; and in consideration of that and many other engagements, the defendant was then under on account of the ship, and of £250 paid, Peat had by his deed dated 24th September, 1791, assigned the ship to the defendant.

On this evidence, LORD KENYON said, he was of opinion, that the plaintiff had made out a prima facie legal title to the possession as he claimed it, sufficient to exempt him from being charged as executor de son tort.

Erskine, for the plaintiff, insisted that the mere proof of the deed of assignment was not sufficient, as he ought to show a completely legal title. That Lord Hawksbury's Act having made an indorsement of the grand bill of sale necessary, such ought to be shown.

LORD KENYON said, that in a question of the nature of the present, he would not inquire whether the plaintiff had conformed to all the requisites necessary to complete his title; that if the defendant came to the possession by color of a legal title, though he had not made out

such title completely in every respect, he should not be deemed an executor de son tort.

The plaintiff had a verdict.

Erskine, Gibbs and Baldwin, for the plaintiff.

Mingay and Reader, for the defendant.

Vide Read's Case, 5 Co. 33; Anon., Salk. 313.

IN trover for a quantity of iron, tried at the last assizes for Stafford before Lawrence, J., the case was opened by the plaintiff's counsel to be that the goods in question had been originally sold by the defendant to the intestate in his lifetime; that on his death, they not having been paid for, on application to the intestate's widow for that purpose, she delivered them back to the defendant in satisfaction of his demand. No other acts were stated to have been done by the widow to show that she had before taken upon herself to act as executrix; but on this statement the defendant's counsel contended, that she having, by this intermeddling with the intestate's effects, made herself executrix de son tort, and as the defendant's was a just debt, which the rightful administrator would have been bound to have paid, the defendant had a right to protect himself in this action under such payment by the executrix de son tort; for which they cited the dictum in Parker v. Kett, 1 Ld. Raym. 661, that a legal act done by executor de son tort will bind the rightful executor. On the other hand was cited Locksmith v. Creswel, 2 Rol. Abr. 399, tit. Relation, pl. 1, as a case in point. The learned judge thought the plaintiff was entitled to recover; but gave the defendant leave to move to set aside the verdict and enter a nonsuit, if the court thought his direction wrong. A rule nisi for that purpose was accordingly obtained in Michaelmas Term last, against which

Williams, Serjeant, and Wigley were now to have shown cause; but the court required the counsel for the defendant to sustain their rule.

Milles and Jervis, in support of the rule.

LORD ELLENBOROUGH, C. J. I am not inclined to dispute most of the propositions which have been advanced in the argument, but the answer to them is, that they have no application to the only question in this case. For when it is said that all payments which are made by an executor ae son tort in a due course of administration shall be allowed, that may be conceded; but a single act of wrong in taking

the goods of the intestate, though it may be sufficient to make the party an executor de son tort with respect to creditors who may choose to sue him in that character, yet will not give him any right to retain them as against the lawful administrator. And the only evidence before the court, that the widow of the intestate acted in the character of executrix de son tort, is this single act of wrong in which the defendant participated. I take the principle to have been clearly established by Lord Holt in the case of Whitehall v. Squire, in Carth. 104, which appears to have been much considered. That was a case where the plaintiff, having received a horse belonging to the intestate from the defendant in remuneration of services performed at the request of the defendant about the funeral of the intestate, afterwards administered to the intestate, and brought trover against the defendant for the value of the horse so received by himself before he became administrator. By Lord Holt's opinion, the plaintiff should have recovered; and he never intimated that the delivery being made by one acting as executor de son tort would be a bar to an action by the rightful administrator; and the other two judges who differed from him in the conclusion never questioned the right of the administrator to maintain such an action in general; but they held that the plaintiff, being a particeps criminis in the very act he complained of, should not be permitted to recover upon it against the person with whom he had colluded. But there is no intimation of a difference of opinion upon any other point of Lord Holt's judgment. If this defence could be maintained the whole system of administration of an intestate's effects would be put an end to, and instead thereof an authorized scramble introduced by law among the creditors for priority of payment, where the assets were insufficient; and such as had no chance of payment in the regular course of administration would by underhand means plant a beggar in the intestate's house, and under color of his being thus made an executor de son tort, would obtain a delivery from him of the goods with which they had respectively furnished the intestate. It may be said that such a transaction might be impeached on the ground of fraud; but if a creditor could thus acquire a title to the intestate's property by the naked act of delivery by another, it would be very difficult in many cases to prove that such delivery had been made in collusion with the creditor who received the goods. Without disputing, therefore, the authority of any of the cases which have been referred to, it is sufficient to observe, that when it is laid down generally that payments made in the due course of administration by one who is executor de son tort are good, that must be understood of cases where such payments were made by one who is proved to have been acting at the time in the character of executor, and not of a mere solitary act of wrong in the very instance complained of, by one taking upon himself to hand over the goods of the intestate to a creditor. If it were necessary, it might be fit to consider whether in any case such a delivery of the intestate's goods to a creditor, by one who had no lawful authority, would be a bar to an action of trover by