66 In the Queen's Bench.-Paull et ux v. Simpson. The present applica In the Queen's Bench. Before the Right Honorable THOMAS DENMAN, Lord Chief Justice of the Queen's Bench, and the rest of the Judges. ment; because, under the particular act, for this argument. PAULL et ux v. SIMPSON.-26 June, 1846. Declaration in covenant, charging the defendant as assignee of a lease, alleged that all the estate of the lessee then to come and unexpired of and in the demised premises, by assignment thereof then made, legally came to and vested in the defendant. It appeared, that, on the death of the lessee intestate, his widow remained in possession for nine months, paid the rent and took possession of her husband's effects. At the end of that time, defendant, her son-in-law, with her concurrence, went to the agent of the lessor and said that he was going to hold under the lease until the end of the term; he did accordingly occupy the premises, and paid the rent till the lease expired. No administration was taken out to the effects of the lessee. Held, first, that the jury having negatived an assignment in writing, the defendant was not chargeable as an assignee in fact: secondly, that an assignment by act of law would support the allegation in the declaration, but that the defendant was not an executor de son tort, and was not chargeable as assignee in law. COVENANT by the executrix of the lessor against the assignee of the lessee for nonpayment of rent, and for breach of a covenant to repair. The declaration was in the usual form, and alleged, that, after making the lease, and during the term thereby granted, all the estate, &c., of John Wilkin, (the lessee,) then to come and unexpired of and in the demised premises, by assignment thereof then made, legally came to and vested in the defendant. Plea: that all the estate, &c. of J. Wilkin of and in the demised premises, by assignment thereof then made, did not come to or vest in the defendant, in manner and form, &c. Issue thereon. On the trial, before Wightman, J., at the Middlesex sittings after Trinity term, 1845, it appeared that the lease was granted by Harwood, the lessor, to Wilkin, for a term which would expire on the 9th September, 1844; Wilkin died intestate in July, 1841; upon his death his widow continu ed in possession for about nine months, In the Queen's Bench.-Paul et ux v. Simpson. and paid the rent and took possession of all his effects. At the end of that time, with her concurrence, the defendant, who was her son-in-law, brought the lease to the agent of the executrix of the lessor, and said that he was going to hold under the lease until the end of the term; and he continued to occupy the premises and pay the rent till the lease expired. No administration had been taken out to the effects of Wilkin, the lessee. It was contended for the defendant, that he was not chargeable as assignee, by reason of his occupying the premises and paying rent; and that the circumstance of his being executor de son tort, would not make him assignee in law. The learned judge directed the jury that they might infer that the defendant was assignee in fact, but that they must be satisfied that the assignment was in writing; and he left to them the question whether there had been an assignment in writing. The jury found for the defendant. In the following Michaelmas Term a rule nisi for a new trial was obtained on the ground that the direction was too narrow, inasmuch as there might have been an assignment by operation of law; that the defendant might have taken by his own act as executor de son tort, because a person who takes from an executor de son tort, is himself executor de son tort; also, on the ground of the verdict being against evidence. Lush, now showed cause.-An assignment from one party to another can only be by writing, unless where it is by operation of law, when a party takes as executor or administrator, whether rightfully, or de son tort, or as assignee of a bankrupt. It cannot be maintained that a person who takes from an executor de son tort, becomes himself executor de son tort. The fact of a person being in possession is only evidence of his being assignee. [Patteson, J.-In Derisley v. Custance, (4 T. R. 75,) it was held that the allegation, that the term came to and vested in the defendant by assignment thereof, was proved by showing that he was heir at law: the words "then and there made," are merely formal. Wightman, J.-It is said that the ordinary form suffices when the party is assignee in point of law: the words "then and there made," do not add any thing. Lord Denman, C. J.— If the party is assignee by virtue of his becoming heir, no assignment is then made.] The mode in which the party has stated his title ought to be proved. [Wightman, J.-The title is the assignment, however made.] Suppose it was alleged that it came to the party by indenture of assignment. [Wightman, J.If the plaintiff states the mode of the assignment, he may be bound by it.] [He cited Hyde v. Moakes, (5 C. & P. 42;) Botting v. Martin, (1 Camp. 317.)] If a person who takes from an executor de son tort, is himself executor de son tort, any person who buys from an executor de son tort, becomes executor de son tort. In Williams on Executors, 191, 3d edit., it is said, "If another man takes the goods of the deceased, and sells or gives them to me, this shall charge him as executor of his own wrong, but not me;" citing Godolph, part 2, c. 8, s. 1; Com. Dig., " Administrator," c. 2. The defendant in this case took the term by gift from the widow. Sir John Bailey, contra.-An assignment by act and operation of law would support this issue. [Lord Denman, C. J. We do not wish to hear that point further argued. But what is the evidence of an assignment by act and operation of law?] The defendant, having taken to the lease and occupied the house, dealt with the assets of the deceased; and that makes him executor de son tort. [Lord Denman, C. J.--You must contend that every possible dealing with the property of the deceased, would make a party executor de son tort.] That would be so when a party deals with the assets of the deceased as if he had a right to do so. There is a distinction between goods and a lease; a person who possesses the latter at one time does not possess it for the whole term. In Com. Dig. " Administrator," c. 2, it is said, "So if a man takes goods out of the possession of the lawful executor or administrator, it does not make him executor de son tort." But the defendant has taken the remainder of the term, and has enjoyed it, there is nothing to prevent him from being executor de son tort, though another person had previously been so. In the Queen's Bench.-Rogers v. Kennay. LORD DENMAN, C. J.-I should have that a person taking from an executor de been of opinion that an assignment in son tort is not chargeable as an executor writing was necessary, in order to charge de son tort; and that seems reasonable, the defendant as assignee in fact. But otherwise there would be no end to the the question is, whether the defendant can number of persons who might be charged be charged as assignee in law. If he is as executors de son tort. In the case of a executor, or executor de son tort, it is lease longer than the present, which clear he may. I can understand, that, in might be assigned through several succase of collusion, a person who comes in cessive hands, all of them would become under one who has made himself executor | liable. It is much more consistent with de son tort, would himself become liable good common sense, that the rule should as executor de son tort; but that is not be as it is there laid down. the case here. On the contrary, the widow deals with the property of the deceased, and the defendant did not interfere with it. Now, we have a direct authority in the passage cited from Williams on Executors, and therefore I think, in this case, the widow, and not the defendant, was executor de son tort. And there is no distinction between goods and a lease; because a term vests absolutely, unless there is a provision to the contrary. PATTESON, J.-The question, whether the defendant took as assignee, was rightly left to the jury. As to the question, whether the defendant is chargeable as assignee in law, the authority mentioned by my Lord is precise, that the defendant. was not executor de son tort; and then there is nothing to show that the defendant came in by operation of law. WIGHTMAN, J.-The evidence in this case showed that the defendant took the premises from a person who was executor de son tort; and the question was, whether he took from her by assignment. Strictly speaking, there can only be an assign ment in fact by writing, in pursuance of the statute of frauds, in contradistinction to an assignment by act and operation of law. An assignment in writing was negatived by the jury. Then there was no evidence in this case to warrant the sug Rule discharged. ROGERS V. KENNAY.-27th June, 1846. Goods were deposited with R. upon the premises of plaintiff, as security for any sum of money due, or to become due thereafter, with authority, in default of payment, to sell. Some of the goods were removed by R. from time to time, and others deposited in lieu of them. The sheriff took them in execution, in an action against R. at the suit of defendant. In an interpleader issue to try whether they were the property of the plaintiff or not-Held, that the special property which plaintiff had in them, supported the affirmative; and that they could not be taken in execution. ISSUE under the interpleader act, tried before Coleridge, J., at the summer assizes at Chelmsford, in 1845, in the common form, to try whether certain goods, seized by the sheriff of Essex in an execution at the suit of the defendant, against one William Rowe, were at the time of such seizure, the property of the plaintiff, Rogers, or not. On the trial, it appeared debted to Rogers, had deposited goods that Rowe, who was a builder, being inwith him under the following memoran dum: 66 sideration of your having given cash for 'Mr. Thomas Rogers: Sir-In conseveral bills of exchange, bearing my sig nature, and drawn by you upon my regestion that the defendant might be sponsibility and recommendation, I herecharged as an assignee in law, on the with deposite about 500 slates; between ground that he was executor de son tort. thirty and forty slate chimney jambs, comThe effects of the deceased were adminis-plete and ready for fixing up; twenty tered by the widow, though in her own wrong; and there is an express authority, * Coleridge, J., was absent. twelve large stone logs, for laying down sink stones; a quantity of stone paving; to given purposes; a quantity of Bath stone coping, and several stone steps and stone slabs; fourteen wheelbarrows and In the Queen's Bench.-Rogers v. Kennay. fifty-six deal planks; and the whole of these things are now upon your land at Maryland Point, Stratford Essex, as collateral security for any sum of money now due or owing, or which may become due hereafter, or owing by virtue of any bill of exchange, I O U's, or in any other way whatsoever or howsoever; and I further authorize you, in default or nonpayment on my part, to sell, by private or public sale, the whole of the foregoing articles named, and account to me, (in account of debit and credit for the same,) showing how the account may then stand between us. "WILLIAM ROWE." Rowe moved some of the materials from time to time, and deposited others in lieu of them. On the 10th March, the sheriff seized the goods in execution upon the plaintiff's premises. The jury found a verdict for the plaintiff, on the question whether the memorandum was given boná fide, or was a colorable contrivance to protect the goods against an execution; but the learned judge directed a verdict to be entered for the defendant according to his construction of the memorandum, reserving leave to move to enter a verdict for the plaintiff. In the following Michaelmas term, a rule nisi accordingly was obtained, against which Pearson, showed cause.-First, some of the goods seized were not the same as had been deposited with Rogers under the memorandum; and the plaintiff is entitled to a verdict for them. The memo randum could not give the transferree a property in goods not upon the plaintiff's premises at the time of the assignment. (Tapfield v. Hilman, 6 Man. & G. 245; Gale v. Burnell, 10 Jur. 198.) [Patteson, J.-The memorandum does not seem to point to any future acquired property.] Secondly, a pledge. or mortgage of goods and chattels does not confer a property in them to the pawnee or mortgagee. In detinue, the declaration in which states that the plaintiff was possessed as of his own property, a lien must be pleaded specially; (Mason v. Farnell, 12 Mee & W. 674, over-ruling Lane v. Pearson, in note to White v. Teal, 12 Adol. & Ell. 116; 4 Per. & D. 43; 5 Jur. 1037; Whitehead v. Harrison, 6 Q. B. Rep. 423; 8 Jur. 894; Barnewall v. Williams, 7 Man. & G. 403 ;) so also in trover, which involves the right of property and right of possession. White v. Teal, 12 Adol. & Ell. 113.) The sheriff might have sold the goods subject to the lien of the plaintiff. "Goods pawned may be taken on an execution against the pawner upon satisfaction of the pledge." (Tidd. Pr. 1003, 9th ed.) the goods were deposited under the Montagu Chambers, contra.-Part of memorandum, and other part at different times, giving the plaintiff a lien upon them as a pledge, with a power to sell. them. As to the first, the plaintiff holds The sheriff has no right to seize goods held in right of a lien upon v. Evans, 6 Mee. & W. 36.) As to the them. (Legg perty or no property, a lien confers a question what is meant by issue of prospecial property, which entitles the party to detain the goods as against a stranger until his claim is satisfied. In trover, a plea of no property in the plaintiff' means (Nichols v. Bastard, 2 Cr. M. & R. 659.) no property as against the defendant. [Patteson, J.-In Richards v. Symons, (10 Jur. 6,) a right of lien, conferred upon the defendant by the plaintiff, supported a plea in trespass, that the chattel was not the property of the plaintiff.] When the judge directed this issue, he meant to introduce the question as to special as well as general property. LORD DENMAN, C. J.-If a debtor has pawned his goods, the sheriff can do no more than sell the duplicates; they are all the interest of the execution debtor in the goods; he cannot get the goods without paying the money for which they are pledged. Legg v. Evans, (6 Mee. & W. 36,) is a case directly in point, and it was much considered. PATTESON, J.-The case of Legg v. Evans is directly in point, because the action in that case was brought against the sheriff who had seized the goods in question, of which the plaintiff in trover stated that he was lawfully possessed as of his own property. If in this case any goods were taken which were not in In the Queen's Bench.-Petch and wife v. Lyon. the possession of the plaintiff, that would make a difference; no question of lien would then arise. WILLIAMS, J. concurred.* Rule absolute. PETCH AND WIPE V. LYON.-June 2, 1846. Debt by husband and wife. First count for interest on money lent to plaintiff, M., the wife, while unmarried; second count for money due from defendant to plaintiff, M., on an account stated. Plea, never indebted. The following memorandum, signed by the defendant, was given in evidence" I beg you will not proceed against me for Mrs. M. C. for the 100l. and interest which I owe her, and I will pay her the interest, amounting to 91., due on the 23d November next, and the principal as soon as I am able." The attesting witness stated that he had heard plain tiff's attorney, in the presence of defendant's attorney, say that the debt was owing by the deceased husband of defendant to a former husband of plaintiff, M. He added, that it was said in casual conversation; but a proposal had been made to dispense with his attendance as a witThere was other evidence that the debt was not due from the defendant in her own right, nor to plaintiff, M., in her own right: Held, first, that the statement of plaintiff's attorney was not receivable against plaintiff, as an admission; secondly, that the memorandum was not evidence of defendant being indebted to plaintiff, M., on an account stated. ness. DEBT. The declaration stated that the defendant was indebted to Mary, the plaintiff's wife, while sole and unmarried, in 50l., for interest upon, and for the forbearance by the said Mary to the defendant, at her request, of moneys due and owing from the defendant to the said Mary, and in 1007. for money due from the defendant to the said Mary, while sole and unmarried, on an account stated. Pleas, first nunquam indebitatis; secondly, fraud. On the trial, before Coltman, J., at the spring assizes for Yorkshire, in 1845, the following memorandum was given in evidence by the plaintiffs: "Market Weighton, Oct. 15, 1842. "Mr. Carr: Sir--I beg you will not proceed against me for Mrs. Mary Clarke, for the 1007. and interest which I owe her, Wightman, J., and Coleridge, J., were absent. and I will pay her the interest, amounting to 97., due on the 23d November next, and the principal as soon as I am able. I am, yours &c., JANE LYON. "Witness, Charles Carr." Mr. Carr, the attesting witness, who also drew up the memorandum, was called to prove the defendant's signature, and he was asked in examination, whether he had not heard the plaintiff's attorney, in the presence of the defendant's attorney, on the Thursday preceding the trial, say that the debt was owing by the deceased husband of the defendant to Robert Clarke, the former husband of the female plaintiff, who died in 1842. This question was objected to on behalf of the plaintiffs. In answer to a question by the judge, the witness stated that it was said in mere casual conversation, but that a proposal had been made with a view of dispensing with his evidence. The learned judge was of opinion, that the admission sought to be given in evidence was made in the course of a discussion whether the attendance of the witness should be dispensed with, and therefore allowed the question to be answered; and it was answered in the affirmative. There was other evidence to show that the debt was in fact due from the husband of the defendant to Robert Clarke. It was objected that there was no evidence of any accounting by the defendant in respect of money due from her to the female plaintiff; that the memorandum at most amounted to a promise, in respect of a supposed liability of the defendant to pay the debt of her husband; and that the declaration should have been specially on the agreement. Under the direction of the learned judge, the jury found a verdict for the defendant on the first issue and for the plaintiff on the second, leave being reserved to move to enter a verdict for the plaintiff on the first issue for such sum as the court should think fit. In the following Easter Term, (April 16,) a rule nisi accordingly, or for a new trial on the ground of the improper admission of evidence, was obtained; against which, in Trinity Term, (May 28,) Bliss and Pashley, showed cause.First, this was an admission of a fact by an agent, within the scope of his authori |