Turner v. . Child , 12 N.C. 331 ( 1827 )

Taixou, Chief-Justice.

The case is somewhat different in its circumstances, from what it was when before appealed from, for it now appears that there was no rightful administrator on the effects of Francis Child. It follows thence, that if the Defendant has done any act which makes him liable as executor de son tort, the Plaintiff having established his debt, is entitled to recover. Another feature in thd case now is, that Clancy was appointed the Attorney in fact of Francis, and that the Defendant’s authority was derived under this agency.— Supposing therefore, that the Attorney was authorized to collect the money arising from the sale after the death of his principal, yet Clancy renounced the authority after hearing of the death of F. Child, and gave notice to the Defendant, that he had done so 5 but after this, when the Defendant was without a shadow of authority, he collected money belonging to the estate. This makes him an executor de son tort, and the remaining question is, whether the evidence of F. Child, having taken away horses belonging to the Defendant, was properly rejected. I think it was in no manner connected with the fact, which made the Defendant executor de son tort, viz : the taking into his possession ]the goods of his brother, and collecting bis debts ; and because if the Defendant meant to rely upon it, as authorizing him to retain, it was inadmissible. Such an executor cannot retain for his own debt, otherwise there would he a struggle among creditors to obtain possession of the goods, without obtain ing administration. If he pleads a retainer to satisfy his own debt, the Plaintiff may reply that he is executor de son tort, (Alexander v. Lane, Yelv. 137). Nor can he defend himself by showing, that he has paid debts of deceased to the amount, of what he has received, unless he pleads plene adminislravit, (Whitehall v. Squire, Carthew 104). I am of opinion that the case has been properly decided, and that the judgment be affirmed.

Per Curiam — Judgment affirmed.