Charles Tharpe, and Sarah his Wife, Administratrix of Letitia Evans, Deceased, v Stallwood and Another
| Jurisdiction | England & Wales |
| Judgment Date | 05 May 1843 |
| Date | 05 May 1843 |
| Court | Court of Common Pleas |
English Reports Citation: 134 E.R. 766
IN THE COURT OF COMMON PLEAS
S. C. 6 Scott, N. R. 715; 1 d. & L. 24; 12 L. J. C. P. 241; 7 Jur. 492. See Faster v. Bates, 1843, 12 Mee. & W. 233; In re Pryse, [1904] P. 305; Ocean Accident and Guarantee Corporation v. Ilford Gas Company, [1905] 2 K. B. 498.
[760] charles thakpe, and saeah his Wife, Administratrix of Letitia Evans, Deceased, v. stallwood and another. May 5, 1843. [S. C. 6 Scott, N. E. 715; 1 D. & L. 24; 12 L, J. C. P. 241; 7 Jur. 492. See Foster v. Bates, 1843, 12 Mee. & W. 233; In re Pryse, [1904] P. 305; Ocean Accident and Guarantee Corporation v. Ilford Gas Company, [1905] 2 K. B. 498.]. An administrator may maintain trespass for acts done after the death of the intestate, and before the grant of administration.-The rule that a party cannot be made a trespasser by relation, is only applicable where the act complained of was lawful at the time.-The court will not grant a new trial upon the ground of surprise, merely because the unsuccessful party has neglected properly to instruct his attorney. Trespass, for taking certain goods and chattels of the plaintiff Sarah, as administratrix, &c., and carrying away the same, &c. Plea, not guilty, "by statute." At the trial, before Tindal C. J., at the sittings for Middlesex after last term, the following facts appeared in evidence:-One Cole was tenant to the defendant Stallwood, of a house in which the intestate had occupied an apartment. She died in June 1842, possessed of certain household furniture in the apartment in question. On the 28th of July the furniture was seized by Stallwood and the other defendant (a broker), as a distress for rent alleged to be due from Cole to Stallwood; some of the furniture being at the time of the seizure off the premises, as the plaintiffs were in the act of removing it at the time. On the 29th administration [761] of the estate and effects of the intestate was granted to the female plaintiff. The defendants failed to prove the tenancy of Cole, it appearing that it was under a written agreement, which was not produced. It was then contended on their behalf that trespass would not lie by an administrator for an act done before the date of the letters of administration. Leave was reserved to the defendants to move to enter a nonsuit upon this point; and the plaintiffs obtained a verdict for 211. Bompas Serjt., on a former day in this term (20th of April), moved accordingly. He submitted that there was a distinction between trespass and trover. The latter may be supported by an administrator for a conversion before the grant of administration ; but the right to bring trespass stands upon a different footing. He cited Cooper v. CUtty (1 W. Bl. 65, 1 Burr. 20), Smith v. Milks (1 T. E. 475), Carlisle v. Garland (7 Bingh. 298, 5 M. & P. 102, S. C. in Cam. Scac., 10 Bingh. 452, 4 M. & Sc. 24, 2 C. & M. 31, 3 Tyrwh. 705; in Dom. Proc. 4 New Ca. 7, 4 Scott, 587), and Balme v. Button (9 Bingh. 471, 3 M. & Sc. 1, 1 C. & M. 262, 2 Tyrwh. 620). Although it is said in 1 Williams on Executors (page 493, 3d ed.) (citing Long v. Hebb (Style, 341), 2 Roll. Abr. 399, tit. Eelation (A.), pi. 1 (K), Anon. (Comb. 451), Selw., N. P. (page (b) This cause was tried a second time before Maule J., at the sittings after Easter term 1843, when the plaintiff obtained a verdict, which the court refused to disturb. See further, as to contribution, [760] Sadler v. Nixon, 5 B. & Ad. 936; S. C. per nomen, Sadler v. Hidcson, 3 N. & M. 258. See also Eastall's Entries, 161; Vet. Int. 42; Philips v. Biggs, Hardres, 164; Offley and Johnstme's case, 2 Leon. 166; Anon. Sir F. Moore, 136, No. 280; Anon. 2 Ventr. 348;. Walton v. Hanbwy, 2 Vern. 592; Parsons v. Briddock, ib. 608 ; Cowell v. Edwards, 2 Bos. & Pull. 268; Deering v. Sari of Winchelsea, ibid. 270; Graham v. Robertson, 2 T. E. 282; Brand v. Boulcott, 3 Bos. & Pull. 235; Osborne v. Harper, 5 East, 225; 1 J. P. Smith, 411; Kelby v. Steel, 5 Esp. N. P. C. 194; Dobson v. Wilson, 3 Campb. 480; Lloyd v. Sandilands, Cow. N. P. C. 13; Beits v. Drewe, 2 A. & E. 57, 4 N. & M. 64; Dimes v. Arden, 6 N. & M. 494; Bac. Abr. Obligation (D), 5. (h) Thus rendered in 18 Vin. Abr. 285, same tit. :- " If a man dies possessed of certain goods, and after a stranger takes and converts them to his own use, and then administration is granted to J. S,, this administration 5 MAN. & G. 762. THARPB V. STALLWOOD 767 717, 6th ed.), and Patten v. Patten (Aloock & Nap. 493)) that "an ad-[762]-ministrator may have an action of trespass or trover for the goods of the intestate taken by one before the letters granted unto him;" yet the only ease that supports the position as to trespass is the short note of Long v. Hebb (a). [Coltman J. After a verdict for the plaintiff in ejectment, the lessor of the plaintiff may maintain an action for mesne profits antecedent to the day of the demise : how is that explained except upon the doctrine of relation ]] The action of ejectment is altogether anomalous. [Tindal C. J. referred to Com. Dig. tit. Administration (B. 13), where it is said that since the statutes 4 Ed. 3, c. 7, and 31 Ed. 3, c. 11, "an executor or administrator shall have trespass or trover for the goods of the testator taken in his life-time" (b); and his lordship observed, that it would be a strange anomaly to hold that an administrator could maintain trespass for an act done before the death of the intestate, and not for One done afterwards.] The learned Serjeant moved also, upon the ground of [763] surprise, on an affidavit of the defendant's attorney, stating that he had inquired of the defendant Stallwood whether Cole held under a lease or any written agreement, when the defendant informed him that Cole was merely a yearly tenant; and that the deponent had not the least idea of there being any written document between them. A rule nisi having been granted, Shee Serjt. (with whom was Wordsworth) now shewed cause. Upon the ground of surprise, the affidavit is insufficient. It discloses a case of negligence, either on the part of the defendant Stallwood or his attorney; but that will not entitle him to a new trial. There is no affidavit by the defendant himself; and the one sworn does not even state that any rent was due. [Tindal C. J. It leaves us in complete doubt whether there was any agreement or not.] The other is the material question in the case, namely, whether an administrator can maintain trespass for an act done to the intestate's estate after his death, but before the grant of administration. The defendants, by pleading not guilty only, have admitted the representative character of the female plaintiff, and that she was possessed of the property in that character. [Tindal C. J. The possession is undoubtedly admitted on the face of the record.] It will be contended, on behalf of the defendants, that in the case of an administrator, his title does not relate back to the death of the intestate, as it does in the case of an executor to the death of his testator; but if that were so, and an action would not lie in such a case as the present, it would be a striking instance of a wrong without a remedy, which the law abhors. But the distinction between executors and administrators in this respect does not exist; in Com. Dig. tit. Administration (B. 10) it is said, "An executor or administrator has the property of the goods of his testator, or intestate, [764] vested in him before his actual possession, and therefore may have trover, shall relate to the death of the testator, so that J. S. may maintain an action of trover and conversion for this conversion before the administration granted to him. Trin. 10 Car. B. E., between Locksmith and Cresmll, adjudged; this being moved in arrest of judgment, after verdict for the plaintiff. Intratur, Hill, 9 Car. Rot. 729." (a) "In a trial between Long and Hebb and Others, it was said by Eolle, Chief Justice, that letters of administration do relate to the time of the death of the intestate, and not to the time of granting them; and therefore an administrator may bring an action of trespass or a trover and conversion for goods of the intestate taken by one before the letters granted unto him; otherwise there would be no remedy for this wrong...
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