of the testator; and, consequently, the defendant in this case had no right, as against the rightful executor, to sell these goods. The case of Allen v. Dundas † is an authority only to shew, that a payment made to an executor, acting under an existing probate, by a party ignorant of its being unfairly obtained, is valid; and Parker v. Kett only shews, that the party will be bound by a legal act done by an executor de son tort; but here the act was illegal. The Solicitor-General and Wightman, contrà: In Allen v. Dundas it was held, that the payment of money to an executor, who had obtained probate of a forged will, was a good discharge to the debtor of the intestate; and in Packman's case § it was held, that though letters of administration be countermanded and revoked, a gift or sale made by the administrator acting under the probate was not thereby defeated; and Semine v. Semine || is an authority to the same effect. ABBOTT, Ch. J.: There is a manifest distinction between the case of an administrator and an executor. An administrator derives his title wholly from the Ecclesiastical Court. He has none until the letters of administration *are granted, and the property of the deceased vests in him only from the time of the grant.¶ An executor, on the other hand, derives his title from the will itself, and the property vests in him from the moment of the testator's death. That being so, the property vested in the plaintiff, as executrix, from the time of the death of the testator; and, consequently, the defendants, who had notice of the second will, had no right to sell, and therefore are liable in this action. BAYLEY and HOLROYD, JJ. concurred. + 1 R. R. 666 (3 T. R. 125). 1 Ld. Ray. 658. § 6 Co. Rep. 19. || 2 Lev. 90. ¶ But the grant will relate back for certain purposes, namely, so as to give title against a trespasser, or WOOLLEY v. CLARK. [ *746 ] WOOLLEY BEST, J.: CLARK. Where a party obtains a judgment irregularly, which is afterwards set aside for irregularity, he is not justified in acting under it; but the sheriff is justified. Here, the first probate was irregularly obtained. The party who obtained that probate, therefore, was not justified in selling the goods; but a creditor, who paid him a debt while the letters of administration were unrepealed, would be protected. Rule discharged.† 1822. May 20. [ 761 ] [ *762] THE KING v. THE JUSTICES OF FLINTSHIRE. (5 Barn. & Ald. 761–762; S. C. 1 Dowl. & Ry. 470.) An order of sessions for levying and paying to the treasurer of the county a sum to enable him to reimburse certain persons for an antecedent debt, although the debt had been incurred for county purposes, is bad. PARKE, in last Michaelmas Term, obtained a rule nisi for a certiorari, to remove an order of Sessions of the county of Flint, dated 12th July last, for levying and paying into the hands of the treasurer of that county 2001. 5s., to enable him to pay that sum, in part-payment of the claim of Messrs. Sankey. It appeared that, by a former order of Sessions, the treasurer had been empowered to borrow from Messrs. Sankey, who *were bankers, the sum of 1,000l., for carrying on the public works within the county, to be repaid by instalments. This money had been advanced, from time to time, in 1817 and 1818, and repaid in account, but further advances being made, the balance remaining due to the bank was 4477., in part-payment of which this order was made. The affidavits on the other side stated, that the whole money had been, in fact, laid out for county purposes. The COURT, (after hearing Scarlett, Littledale, and D. F. Jones against, and Parke in support of the rule,) made the rule absolute; observing, that this was a rate to reimburse persons for a debt previously contracted, which was clearly bad, inasmuch as the † See Philips v. Biron, 1 Str. 309. v. THE JUSTICES OF justices had no right, except by following the provisions of par- THE KING ticular Acts of Parliament, which had not been done here, to anticipate the county rates, and so to make the expense ultimately FLINTSHIRE. fall on different persons from those who were by law liable at the time it was incurred. Writ of certiorari granted. REX v. DUGGER. (5 Barn. & Ald. 791—795.) A warrant issued in pursuance of a writ de contumace capiendo stated that the defendant was attached for non-payment of costs in a cause of appeal and complaint of nullity lately depending in the Arches Court of Canterbury: Held, that this warrant was insufficient in not stating with certainty the nature of the cause, so as to shew that it was one apparently within the jurisdiction of the Ecclesiastical Court. SELWYN had obtained a rule nisi for a habeas corpus, to bring up the body of the defendant, on the ground of a defect in the warrant of commitment. It appeared that the defendant was in custody under a warrant of the Sheriff of Cornwall, issued by virtue of a writ de contumace capiendo, and commanding the officer "to attach R. Dugger, until he shall have made satisfaction for manifest contumacy, and contempt of the law and jurisdiction ecclesiastical, in not obeying his Majesty's lawful commands, by paying, on a day now long past, to J. J. Austen, or to his proctor, 2021. 8s. 5d., being the amount of costs taxed in a certain cause of appeal and complaint of nullity, lately depending in the Arches Court of Canterbury, between *J. J. Austen, appellant, and R. Dugger, appellate." It was objected, first, that it did not appear, on the face of the warrant, that the suit between Austen and the defendant was one within the jurisdiction of the Ecclesiastical Court; and, secondly, that no addition was given to the defendant's name in the warrant. On shewing cause, the significavit was produced, in which the defendant was described as “cooper.” Carter shewed cause: The writ de contumace capiendo is given by the 53 Geo. III. c. 127, in lieu of the writ de excommunicato capiendo, against any 1822. [ 791 ] [ *792 ] v. DUGGER. THE KING person who shall not obey the lawful orders or decrees of the Court; and it is expressly provided, that it shall have the same force and effect as that writ, and that all rules and regulations, not thereby altered, applying to that writ, shall extend to the writ de contumace capiendo. Now, it is true that it has been held, that where the writ de excommunicato capiendo has been issued in an original suit, it must appear on the face of the writ that the suit was within the jurisdiction of the Ecclesiastical Court. But here the costs appear to have been taxed upon an appeal, which distinguishes this from all the other cases on the subject. The very ground of appeal might have been, that the party promoting the suit in the Court below had instituted the suit for a matter not of ecclesiastical jurisdiction. And the description of the cause, viz. a cause of appeal and complaint of nullity, is the usual and technical description of causes in proceedings in courts of appeal. This appears from the precedent of sentences of courts of appeal, and of a commission of appeal, which are to be found in the Clerk's Instructor in the Ecclesiastical Courts, where the cause is stated in this general form. As to the second objection, the addition is only required by statute 5 Eliz. c. 23, and the provisions of that statute are not to be followed, unless the suit be for one of the nine causes there stated. And so it was held in Regina v. Sangway. Besides, here, the defendant is described as "cooper" in the significavit, and it is therefore most probable, that this description is followed in the writ itself, though it does not appear on the warrant. [ *793] Selwyn, contrà : This may, for anything that appears, have been a suit for one of the nine causes in the statute; and then, it is clear, an addition would be necessary. But the first is the main objection. Here the statement is much too loose and uncertain. In Rex v. Fowler the return was, that the defendant was imprisoned, under a writ de excommunicato capiendo, for certain causes of subtraction of tithes, or other ecclesiastical rights; and it was quashed, on the ground, that the "other rights" might be matters out of the jurisdiction, and that it ought to be shewn + 1 Salk. 294. 1 Salk. 293. v. DUGGER. that the matters were within the jurisdiction; for, of that the THE KING King's Courts were to be judges. Regina v. Hill is an authority to the same effect. And in Regina v. Dr. Watsont it was held to be necessary to shew the nature of the suit in the Court below, in order that this Court might award the proper process; which varies according as the suit below is or is not for one of the nine causes mentioned in the statute 5 Eliz. cap. 23, and in that case the proceedings *took place upon an appeal. For, from the report in Lord Raymond, it appears that Dr. Watson was arrested upon an excommunicato capiendo, being excommunicated for nonpayment of costs, in which he was condemned by commissioners' delegates; and yet, there, a similar objection was taken to the present, and prevailed. Cur, adv. vult. ABBOTT, Ch. J. now delivered the judgment of the COURT: This was an application for a habeas corpus, to bring up the defendant, in order that he might be discharged out of custody, on the ground of a defect in the warrant of commitment. It appears, on the face of the warrant, that he was committed for contumacy, in not paying the taxed costs in a cause of appeal and complaint of nullity, then lately depending in the Arches Court of Canterbury: and it is contended, that this does not sufficiently shew that the cause was one of ecclesiastical jurisdiction. This writ de contumace capiendo was first given by the 53 Geo. III. c. 127, and thereby made subject to all the rules and regulations applying to the former writ de excommunicato capiendo. Now, the principle to be collected from the several decisions upon that writ is this, that it must appear to the Court, upon the face of the proceedings, that the party was condemned in costs in a suit respecting a subject-matter apparently within the jurisdiction of the Ecclesiastical Court. Our doubt, yesterday, arose on the ground, that this was the case of an appeal; and, although Regina v. Dr. Watson was probably the case of an appeal, yet that fact does not very distinctly appear from the report in Lord + 1 Salk. 294. 2 Ld. Ray. 817; and see same case, 7 Modern, 56, where it appears clearly that that was the case of an [ *794 ] |