1

has sold away. I think that Read v. Blunt applies, and that the direction of the Lord Chief Justice was right."

ERLE, J. (a) The executor has applied the assets in payment of simple contract debts, and cannot be considered liable for not retaining them with a view to indemnify for some future breach of covenant. It is said that there is an exception where the assets consist of profits arising from the land, and that such assets ought to be retained for the payment of rent, where there is a covenant to pay it. That exception, however, if it exist, does not apply here: the covenants broken are covenants for the purpose of indemnification, not to pay rent to the covenantee: and the general rule applies. Rule refused.

(a) WIGHTMAN, J., was absent.

*GRAHAM v. GRACIE. April 20.

[*548

A count in debt stated that defendant was indebted to plaintiff in 1007. "for the price or value of certain debts then due from divers other persons to the plaintiff, and then sold and transferred by the plaintiff to the defendant."

Held, on motion in arrest of judgment, that the count was not bad for want of more special averments for that, although the sale of debts would not enable the transferee to sue upon them in his own name, yet, as the permission to sue in the name of the transferor might be the subject of an agreement which would create a debt, such debt might be properly sued for in a common indebitatus count.

A count in detinue stated that plaintiff delivered to defendant a certain bill of exchange [of the plaintiff, to wit, a bill of exchange bearing date, to wit, the 20th day of November, A. D. 1848, drawn by the plaintiff upon and accepted by the defendant] for [the payment to the plaintiff or his order of a certain sum, to wit] 857. [two months after the date thereof], of great value, to wit, of the value of 1007., to be redelivered by defendant to plaintiff on request. Breach, that defendant did not redeliver the bill, but detained.

Plaintiff, on the trial, proved that a bill of exchange for 851. was in the defendant's hands, but did not prove the particular description as laid. The Judge, on objection, amended, first by striking out the words "two months after the date thereof," and then, on further objection, all the words within brackets.

Held, that the count, so amended, was not specially demurrable for want of certainty; and that the amendment was warranted by stat. 3 & 4 W. 4, c. 42, s. 23.

DEBT and detinue. The first count stated that defendant heretofore, to wit, on, &c., was indebted to plaintiff in 1007. for the good-will of a certain trade or business theretofore carried on by plaintiff, and by him then sold, relinquished, and given up to and in favour of defendant at his request: And for the price or value of certain debts then due and owing from divers other persons to the plaintiff, and then sold and transferred by the plaintiff to the defendant at his request." And in 1007. on an account stated. Breach, non-payment. Second count: "that the plaintiff heretofore, to wit, on," &c., "delivered to the defendant a certain bill of exchange [of the plaintiff, to wit, a bill of exchange bearing date, to wit, the 20th day of November, A. D. 1848, drawn by the plaintiff upon and accepted by the defendant] for [the payment to the plaintiff or his order of a certain sum, to wit] 85l., [two months after

the date thereof], of great value, to wit, of the value of 100l., to be redelivered by the defendant to *the plaintiff when the defendant

*549] should be thereunto requested." Breach, that defendant, although

requested, did not deliver the said bill of exchange to the plaintiff, but the defendant hath wholly neglected and refused so to do, and hath detained and still unjustly detains the same from the plaintiff."

Pleas: 1. As to the first count, Nunquam indebitatus. 2. As to the second count, Non detinet. Issues thereon.

On the trial, before WILLIAMS, J., at the last Spring assizes for Somersetshire, it appeared that the plaintiff had agreed verbally with the defendant to sell him the good-will and outstanding debts of the plaintiff's business of a travelling draper, and to "show up" the "round" and the debts to him. A shilling had been given to bind the bargain. About a week after the agreement, the plaintiff, who represented himself as in want of ready money, obtained the defendant's acceptance to the bill of exchange described in the last count of the declaration. The plaintiff was unable to get the bill cashed; and the defendant, having taken it out of plaintiff's hand, declined having anything further to do in the matter until the debts were shown up, and refused to let plaintiff have back the bill. The evidence in support of the last count showed that a bill of some kind for 851. was in the hands of the defendant, but failed to establish any of the particulars of the bill as described in the count. It was objected, for the defendant, that this evidence did not support the count. The learned Judge was of the same opinion, and amended the count by striking out, first, the words "two months after the date thereof," and afterwards, on its being objected that the count, as then amended, had not been proved, all the words within brackets; so that the bill then stood *described as “a certain bill of ex

*550] change for 851." The amendments were objected to, on the ground that the count as altered, was demurrable and leave was reserved to move to enter a verdict for the defendant. Verdict for plaintiff. Crowder now moved according to the leave reserved. (a)—In detinue, where the plaintiff seeks to recover the specific chattel, great certainty of description is necessary; Co. Lit. 286 b; note (1) to Taylor v. Wells, 2 Wms. Saund. 74 b. The declaration here, as amended,*is bad on special demurrer, for want of such certainty; and, therefore, the amendment should not have been made; Evans v. Powis, 1 Exch. 601.† That case, perhaps, may apply only to a pleading made generally demurrable; but in Oakley v. Pritchard, (b) the Court of Exchequer held that an amendment which makes a declaration specially demurrable is to be disallowed in banc. (Montagu Smith here stated that he was counsel for the defendant in Oakley v. Pritchard, and at the trial took the specific objection that the amendment would make the declaration specially

(a) Before PATTESON and ERLE, Js.

(b) Cited in Bury v. Blogg, 12 Q. B. 877, 881 (E. C. L. R. vol. 64).

demurrable but that, in the present case, in which he was counsel for the plaintiff, no such objection was made.) The nature of the objection here is the same as in Oakley v. Pritchard; and it was not necessary to point out, at the trial, that the objection was one which must have been specially assigned for cause on demurrer. The power to amend pleadings at the trial, which is specially given by statute 3 & 4 W. 4, c. 42, s. 23, should be exercised once for all, at the peril of the party [*551 *desiring amendment; it was not intended that liberty should be given to make successive amendments in the same pleading, on objections to prior amendments.

And, further, the first count is bad in arrest of judgment. It does not show an agreement for the sale of goods, in which case a general count might have been good, and would have been supported at the trial, under the Statute of Frauds, as it was proved that a shilling had been given to bind the bargain. It shows an agreement for the sale of debts; the defendant would not have been able to sue for those debts in his own name, but must have had permission to sue in the name of the plaintiff. And the evidence in fact showed a special agreement such as ought to have been specially set out, and cannot be the subject of an indebitatus count in debt. The objection, therefore, might have been taken also as for a variance. Cur. adv. vult.

PATTESON, J., on a subsequent day of the term (May 8th), delivered the judgment of the Court. After stating the nature of the amendments, his Lordship proceeded as follows.

It is objected that these amendments ought not to have been made, because they made the declaration specially demurrable: the question, therefore, is, whether the declaration, so amended, is specially demurrable. We have referred to numerous authorities, which we need not enumerate, but especially to Rolle's Abridgement, Detinue. (a) We think the declaration here was not made specially demurrable, but that it would have been enough simply to describe the bill as a bill of [*552 exchange for so many pounds. It is said in Rolle that detinue may be brought for money, though not marked, if any one saw it delivered. Whether that be quite accurate we need not discuss. It is also laid down that detinue may be brought for a deed without giving its date.(b) This ground of objection therefore fails.

An objection also is made to the count in debt, which is for the price of good-will and of debts owing to the plaintiff, and sold by him to the defendant. No doubt the count is good, so far as the good-will goes. But it is said to be bad as to the price of the debts. We think it is not bad. For though the debts could not be so transferred as to entitle the

(a) See 1 Rolle's Abr. 606, tit. Detinue (A).

(b) See 2 Bac. Abr. 663 (ed. 7), Detinue (B); 2 Chitt. Plead. 428, note (c) (ed. 7). But quære as to the authorities there cited for this point.

transferee to sue in his own name, he might sue in the name of the plaintiff; and the permission to do so might be the subject of an agreement which might create a debt. Rule refused.

WELCHMAN, Administratrix of JOSEPH WELCHMAN, deceased, v. JANE STURGIS. April 21.

Where money belonging to an intestate at the time of his death, or due to him and paid in after his death, or proceeding from the sale of his effects after his death, has, before grant of administration, been applied by a stranger to the payment of intestate's debts and funeral expenses, the administrator may recover it from such stranger as money had and received to his use as administrator; the letters of administration relating back, for that purpose, to the death of the intestate.

The rule of practice requiring that an application to take out of Court money deposited in lieu of special bail should be made before issue joined, is not altered by stat. 1 & 2 Vict. c. 110.

INDEBITATUS assumpsit by plaintiff as administratrix. 1st count, for money had and received to her use as administratrix. 2d count, on an account stated with her as administratrix. Plea: Non assumpsit. On the trial, before PLATT, B., at the last *Monmouthshire *553] Spring assizes, it appeared that the defendant had lived as housekeeper with the intestate since his separation from his wife, the present plaintiff, and had, after his death in May, 1848, and before the taking out of letters of administration by the plaintiff in June of the same t year, applied, in payment of the funeral and other expenses, the cash that was in the house at the time of intestate's death, as well as divers sums of money arising from the sale of his effects, and also certain cash payments made to defendant after intestate's death by parties indebted to him. For the recovery of this money the present action was brought. The defendant's counsel contended that the plaintiff could not recover in this action, inasmuch as the money claimed had been received by the defendant, and paid away by her, before the grant of administration to the plaintiff, and the property of the intestate did not vest in plaintiff before such grant. The learned Judge overruled the objection: and a verdict was found for the plaintiff on the first count, and for the defendant on the second.

Keating, for the defendant, now moved for a new trial on the ground of misdirection.-An administrator cannot sue for money had and received against a stranger who has received money due to the estate before letters of administration granted. Till lately it was doubted how far letters of administration related back. It was laid down in Woolley v. Clark, 5 B. & Ald. 744 (E. C. L. R. vol. 7), that the estate of an intestate vests in an administrator only from the date of the grant of administration; whereas in an executor it vests from the time of the death. But in Tharpe v. Stallwood, 5 M. & G. 760 (E. C. L. R. vol.

[*554

44), it was held that an *administrator might maintain trespass for acts done between the death of the intestate and the grant of the letters. The question then arose, in Foster v. Bates, 12 M. & W. 226,† whether an administrator could sue for a breach of contract committed under similar circumstances; and the Court of Exchequer there held that he was entitled to sue a vendee for goods sold and delivered by a stranger before administration granted; but that decision was distinctly based upon the ground that the stranger, the vendor, had professed to sell as agent for the legal representative of the intestate, whoever that representative might be, and that the administrator could consequently affirm the vendor's agency. Here the defendant has dealt with the goods as by her own authority; and there is not that privity between her and the plaintiff which is necessary to support an action for money had and received. [PATTESON, J.-Woolley v. Clark is not an express decision as regards an administrator; the point there decided was how far back an executor's right of action related. In Comyns's Digest (a) it is laid down that the property is vested by relation in the administrator from the death of the intestate. There is also an Irish case to the same effect, reported in Alcock & Napier.(6)] The question here is, in reality, whether, assuming that letters of administration relate back for some purposes, the administratrix can affirm the act of a stranger dealing with the goods of the intestate as her own.

*PATTESON, J.-I think we should allow of no doubt that the [*555 administratrix in this case is entitled by relation to sue the defendant for money had and received to her use. There are express decisions to show that she could have sued in trespass or trover, for a trespass or a tortious conversion of the same date. Now, as regards the money produced by the sale of the effects, there having been no affirmance of such sale by the plaintiff, she is in a position to bring an action of trover: she may also waive the tort, and bring an action on contract. With respect to the money due to the intestate, and received by the defendant, it is true that no privity existed between her and the plaintiff; but, as such money is due to the administratrix by relation, she may affirm the receiving, and sue for the money as had and received to her use. In Foster v. Bates, 12 M. & W. 226,† the Court said: "There is no occasion to have recourse to the doctrine, that one may waive a tort and recover on a contract:" but in the present case that doctrine must be applied; and, the letters of administration relating back, the administratrix may elect to treat the money as received to her use.

ERLE, J.-With respect to the goods sold by the defendant, the case of Fyson v. Chambers, 9 M. & W. 460,† is another authority to show that the plaintiff has a right to sue: and I do not think that any distinction (a) See Com Dig. Administration (B 10).

(b) See Lessee of Patten v. Patten, Alc. & N. 493, where it was held that the demise, in ejectment by an administrator, might be laid on a day between the death and the grant of administration. See also 1 Williams on Executors, 528, and note (n) ibid. (4th ed.).