by the executrix, dum sola, amounted to him to remove the goods, he cannot sue a devastavit. 1 Bos. and Pull. 293. And the sheriff upon 8 Ann, cap. 14. sect. 1. see Manning's Exch. Practice. 543, (n) though the undertaking prove to be inFreeman v. Fairlie, 3 Meriv. 44.

EXECUTORS AND ADMINISTRATORS.

EXECUTORS AND ADMINISTRA

1. Stated to have been held that a plaintiff suing as executor, in trover for a conversion in his own time, need not prove the death of his testator, where there is no plea of ne unques executor on the record. Lloyd, executrix, v. Finlayson, 2 Esp. 564. Kenyon, C. J. 1797. But see Hunt v. Stevens, 3 Taunt. 113.

B. ASSETS.

B. (a) What shall be.

145

(And see ante, EVIDENCE, pl. 245, 277.)

4. Produce of sale of good will of public-house, held on by administratrix for some time as tenant at will, is assets. Worral v. Hand, administratrix, Peake, 74. Kenyon, C. J. 1791.

And see Jury v. Woodhouse, Barnes, 333. 12 Vin. 206, pl. 9.

5. Executor refers a party to J. S. for information respecting the effects of testator. An admission of assets by J. S. is conclusive. Williams, spinster, v. Innes and others, executors, &c. 1 Campb. 364. Ellenborough, C. J. 1808.

6. Inventory exhibited by administrator in the spiritual court, is evidence of assets to the amount therein stated. Hickey v. Hayter, administratrix, 1 Esp. 313. Kenyon, C. J. 1795.

And see Parker v. Clere, Co. Ent. 128, 9.

7. Sperate debts are not assets without some presumptive evidence of payment. Giles and Headings v. Dyson and Greenwell, administrators of Seward, 1 Stark. 32. Ellenborough, C. J. 1815.

8. After putting in an inventory, it lies upon the executor to discharge himself

of the items. Ibid.

B. (b) How to be distributed. (And see post, INSOLVENT, C.) 2. And it was ruled that if a person so suing, make a profert in curiam, the in- 9. Executors cannot be charged with strument need not be produced. Wat- a service performed for the testator in son and another, administratrix of Max-expectation of a legacy. Lesage v. well, v. King, 4 Campb. 272. Ellenbo- Coussmaker and others, executors, 1 Esp. rough, C. J. 1815. 187. Kenyon, C. J. 1794.

10. As against creditors, disbursements for the children of the deceased since his death will not be allowed. Giles and Headings v. Dyson and Greenwell, administrators of Seward, 1 Stark. 32. Ellenborough, Č. J. 1815.

On the ground that the plaintiff had offered to produce the instrument, the court refused a rule for a new trial. Ibid. S. C. not S. P. 1 Stark. 121. And see Allen v. Dundas, 3 T. R. 125. 1 Saund. 275, n. 3. 2 Saund. 47, k. Mears v. Marshfield, 2 Lord Raym, 824. Blainfield v. March, 7 Mod. 14. S. C. 1 Salk. 285. Elden v. Keddell, East, 187. Newman v. Leech, Barnes, 365. 12. Payment of the residuary effects Franks's case, Noy's Maxims, 137. to the legatee, after the year from testaThynne v. Protheroe, 2 M. and S. 553. tor's death, without notice of the plain

11. Semble, that an executor is entitled to reasonable charges for collecting the debts. Ibid.

L

tiff's demand, will support a plea of plene administravit. Governor and Company of Chelsea Waterworks v. Cowper, 1 Esp. 276. Kenyon, C. J. 1795.

And see Ecles v. Lambert, Aleyn. 38. 1 Mod. 177; post, TRUSTEE, pl. 1.

D. PLEADINGS BY EXEcutors.

(And see ante, A. pl. 1, 2.)

11. An executor is justified in paying 17. In an action for premiums due to bond debts in preference to a debt on the plaintiff's testator, the broker cannot a judgment recovered against the testa-set off returns of premium accruing after tor, but not docketed. Hickey v. Hayter, the death of the underwriter. Houston 1 Esp. 313. Kenyon, C. J. 1795. and others, executors of Houston, v. And the court set aside a nominal Robertson, 1 Holt. 88. Gibbs, C. J. verdict for the plaintiff. 6 T. R. 384. 1815. Acc. Steele v. Rorke, 1 Bos. & Pull. 307. And see 2 Saund. 7, n. (5). Tidd. 967. 12. Executors having assets, are liable for the expenses of the funeral, although they have given no orders respecting it. Tugwell v. Heyman and another, executrix, and executor, &c. 3 Campb. 298. Ellenborough, C. J. 1812.

Qu. whether in such case the plaintiff would be entitled to a general judgment?

C. EXECUTOR DE SON TORT.

C. (a) Who shall be.

13. A. and B. are executors of C.; upon the death of A., D. his executor, in the life time of B., possesses himself of the effects of C. Semble, that D. cannot be sued by a creditor of C. Hall v. Elliott, executor of E. Coddon, widow, executrix of P. Coddon, Peake, 86. Kenyon, C. J. 1791.

Sed vide Read's case, 5 Co. 33, 4. 14. A person is not chargeable as executor de son tort, who acts under the authority of the rightful executor. Ibid. And see Anon. Cro. El. 472.

15. Or who takes possession of the goods of the deceased, under a fair claim of right. Femings v. Jarrat, executor of Peat, 1 Esp. 335. Kenyon, C. J. 1795.

LANDLORD AND TENANT, B. (d). 16. But where A. appoints B., C., and D., his executors, and D. alone proves the will, and appoints E. his executrix, who administers the estate of A., under the direction of B.; she is liable as executrix de son tort of A. Cottle v. Elizabeth Aldrich, executrix of Charles Aldrich, 1 Stark. 37. Le Blanc, J. 1815.

And the court of K. B. refused a rule. for a new trial. Ibid.

And the court of C. P. refused a rule to set aside the verdict. Ibid.

And see Minett v. Forrester, 4 Taunt. 541; Koster v. Eason, 2 M. and S. 112.

not

18. Under a plea of plene administravit to an action of debt on a judgment recovered against intestate, but docketted, payment of bond debts may be given in evidence. Hickey v. Hayter, administratrix, 1 Esp. 313. Kenyon, C. J. 1795.

And the court of K. B. set aside a nominal verdict, which had been taken for the plaintiff. 6 T. R. 384.

Acc. Steele v. Rorke, 1 Bos. and Pull. 307. And see Baker v. Baker, Tidd. 967, 2 Saund. 9, n. (5). Sawyer v. Mercer, 1 T. R. 690.

19. If an executor plead a retainer, and a judgment recovered, which together cover the assets, it is sufficient for the plaintiff to falsify either claim. Campion v. Bentley, administrator of Samuel Bentley, 1 Esp. 343. Eyre, C. J. 1795.

And see Shelly v. Sackville, Moore, 2, pl. 3.

FAIRS AND MARKETS.

1. An uninterrupted user during 20 years, gives a prima facie right to a fair or market; and affords a sufficient answer to an indictment for a nuisance to a highway. The King v. Smith et alt. 4 Esp. 109. Ellenborough, C. J. 1802.

2. But the party may be proceeded against for usurping the franchise. Ibid. And see Yard v. Ford, 2 Saund, 172, ibid. 175, n. 2.

FELONY.

(And see ante, ACTION ON THE CASE, A. (h) Evidence, pl. 284, 5.)

A. WHAT SHALL BE.
(a) Manslaughter.
(b) Forgery.

(c) Embezzlement.

(d) Felony, or misdemeanour.

B. PLEADINGS.
(a) Indictment where necessary.
(b) Form of indictment.

C. Evidence.

A. WHAT SHALL BE.
A. (a) Manslaughter.
(And see post, pl. 29.)

1. An overseer who should remove a sick pauper without that care and attention his situation required, whereby his death was accelerated even for an hour, would be guilty of manslaughter. Dict. per Abbott, J. in R. v. Bellworthy, Wilts. Spring Assizes, 1818. And see Y. B. H. 2 E. 3, fo. 18, pl. 1.

A. (b) Forgery.

of a

ployed by overseers at a yearly salary, to receive and pay money, is a clerk and servant within 39 Geo. III. cap. 85. Rex v. Squire, 2 Stark. 349. Bayley, J. York, 1818.

6. A servant who having received money from his master, to purchase articles, charges more than he pays, is guilty of embezzlement, within this act. Per Holroyd, J. in Braddick v. Croad, Exeter Spring Assizes, 1819.

A. (d) Felony or misdemeanour.

7. That which is declared by statute to be a misdemeanor, cannot be a felony. Rex v. Walford, 5 Esp. 62. Hotham, B. Chelmsford, 1803.

B. PLEADINGS.

B. (a) Indictment, where unnecessary.

8. If a verdict be found for the defendant, on a justification of words of felony, the plaintiff may be arraigned without the intervention of a grand jury. Cook v. Field, 3 Esp. 133. Kenyon, C. J. 1788.

B. (b) Form of indictment.

9. Where the property in goods might have been easily ascertained, the court will not direct a conviction on a count laying the property in unknown. persons

2. A person who makes a copy receipt, interpolating the words "in full Rex v. Robinson, Holt, 595. Richards, of all demands," and produces such C. B. Durham, 1817. Post, pl. 16. false copy upon a suggestion of the loss 10. A count charging the prisoner of the original, is guilty of forgery. with having counterfeit money in his Upfold v. Leit, 5 Esp. 100. Ellen-possession at the time he uttered other borough, C. J. 1804. counterfeit money, must contain a dis4. A. takes a bank-note in the course tinct averment of the fact of uttering. of trade, and passes it to B., from whom Rex v. Kelly and others, 3 Esp. 28. it is detained at the bank as forged. An Buller, J. Hertford, 1799. inspector carries the note to A., who 11. An allegation that when the pripays B. the amount, and taking up the soner so uttered the said piece of counnote, refuses to re-deliver it to the in-terfeit money (referring to a former spector. There is not even probable count) he had other counterfeit money cause for charging A. with feloniously in his possession, is insufficient. Ibid. having the note in his possession, knowing it to be forged. Brooks v. Warwick, 2 Stark. 380. Ellenborough, C. J. 1818.

A. (c) Embezzlement.

5. An accountant and treasurer, em

12. Several felonies of the same nature may be charged in the same indictment. Rex v. Jones, 2 Campb. 131. Ellenborough, C. J. 1808.

But see Young v. The King, 3 T. R. 106. And see R. v. Kingston, 8 East, 41. L 2

13. But the judge will, in his discre- have had a certificate. Rex v. Banks, tion, confine the evidence to a single 1 Esp. 144, 6. Kenyon, C. J. 1794. offence. Ibid. 21. On an indictment for stabbing

14. An indictment upon 43 Geo. III. with intent to resist lawful apprehension, cap. 58. sect. 2. for administering a it must be shewn that the party appresubstance with intent to procure abor-hending, was either present at the comtion, need not aver that the substance mitting of the offence, or came armed was in fact noxious, or that the woman with a warrant. Rex v. Dyson, 1 Stark. was actually with child. Goldsmith's 246. Le Blanc, J. York, 1816. case, 3 Campb. 75. Gloucester, 1811.

Lawrence, J.

And see post, Officer, B. 22. A felon may be convicted on the 15. And, if averred, these facts need single testimony of an accomplice. Rex not be proved. Ibid. v. Jones, 2 Campb. 131. Ellenborough,

Acc. Atwood's case, 2 Leach. Cro. Ca. 521, Durham's case, Ibid.

N. So upon an indictment for poison-C. J. 1809. ing, the poisonous substance need not be proved as laid; 2 Hale, P. C. 291. 1 Hargr. State Trials, 118, Overbury's case. And see Mackally's case, 9 Co. Rep. 61, 67. 2 Inst. 119.

23. Upon an indictment for putting away a forged bank-note, knowing the same to be forged, evidence that the 16. An indictment against an acces-prisoner has passed another note of the sary to a felony committed by a person same manufacture, and that several such unknown, cannot be supported, if it notes have been brought to the bank appears that the principal felon acknow-with different indorsements in his handledged his guilt before the grand jury. writing, is evidence from which the jury Rex v. Walker, 3 Campb. 264. Le may infer a knowledge, that the note Blanc, J. Gloucester, 1812. Ante, pl. 9. mentioned in the indictment was forged. 17. An averment of the conviction of Rex v. Edward Ball, 1 Campb. 324. the principal felon, is supported by the Heath, J. Horsham, 1808. production of the record of his attainder, however erroneous the judgment may be. Rex v. John Baldwin, 3 Campb. 265. Thomson, B. Monmouth, 1812.

C. Evidence.

18. On an indictment for arson, the books of an insurance company are not evidence of an insurance, unless notice has been given to produce the_policy. Rex v. Doran, 1 Esp. 127. Kenyon, C. J. 1791.

S. P. per all the judges. Rex v. Tattersal, 1 N. R. 93.

24. Papers found at the lodgings of the prisoner, and shewn to have been written by him before the crime was committed, were offered to prove his insanity, but were rejected on the ground that what a party has written, though evidence against him, cannot be evidence for him. Rex v. Casaux, Garrow, B., Old Bailey, May 1818.

25. Indictment against a bankrupt for secreting his effects, avers a petitioning creditor's debt to three executors of A. 19. On an indictment for forging a If the debt accrued after A.'s death, seaman's will, the will was admitted in the business being continued by the evidence, without shewing that the pro-executors for the benefit of the estate, it bate granted thereon had been repealed. must be shewn that all three were conPer Bailey, J. and Garrow, B., O. B. cerned in carrying it on. Rex v. Barnes, Dec. 1817. 1 Stark. 243. Le Blanc, J. York, 1816. 26. A general admission by the bankrupt that he was indebted to "the executors of A." is not sufficient. Ibid.

And the ruling having been confirmed by the twelve judges, the prisoner was executed.

20. If stores with the king's mark are found in the prisoner's possession, it lies 27. Upon an indictment on 42 Geo. upon him to discharge himself, either III. cap. 107. sect. 1. for killing deer by producing a navy-board certificate, or in an inclosed park without leave of the shewing that the articles were purchased owner, it lies upon the prosecutor to from a person who may be presumed to prove that such consent was not given.