Thomson Administrator of Bosville, against Harding and Faber
| Jurisdiction | England & Wales |
| Judgment Date | 25 June 1853 |
| Date | 25 June 1853 |
| Court | Court of the Queen's Bench |
English Reports Citation: 118 E.R. 904
COURTS OF QUEENS BENCH AND THE COURT OF EXCHEQUER CHAMBER.
S. C. 22 L. J. Q. B. 448; 18 Jur. 58.
thomson, Administrator of Bosville, against harding and faber. Saturday, June 25th, 1853. The creditor of a deceased person may retain, against the representative of the deceased, payments made to him out of the assets of the deceased, in due course of administration, by an executor de son tort, if the executor de son tort was really acting as executor so that the creditor might reasonably suppose him to be rightful representative. But acts sufficient to make the executor de son tort chargeable as such do not necessarily make the payment good against the rightful executor. [S. C. 22 L. J. Q. B. 448; 18 Jur. 58.] The plaintiff sued as administrator of Alexander William Eobert Bosville, deceased, for 26541. 6s. 6d., money payable by defendants to plaintiff for money received by them to the use of plaintiff as such administrator and for money due to plaintiff as such administrator on accounts stated between plaintiff and defendants. "And the plaintiff, as such administrator as aforesaid, claims 26541. 6s. 6 l., being compounded of the several sums of 9061. 12s., 7471. 14s. 6d., and 10001., paid into the banking house of the defendants by the late Richard [631] Smith, the respective times of such payments appearing by the defendant's books. And the plaintiff will claim interest" &c. Plea : Never indebted. Issue thereon. On the trial, before Cresswell J., at the Yorkshire Spring Assizes 1853, it appeared that the intestate had an estate for life in lands let to various tenants. The defendants were bankers at Bridlington in Yorkshire; and the intestate kept an account with the bank. He was in the habit of overdrawing his account largely: and, on 14th January 1833, he executed a bond to the then partners in the bank, in the penal sum of 40001., conditioned to secure such disbursements as they, or the partners for the time being, should make for him, not exceeding 20001. in all. He died, on 23d September 1847, being then indebted to the bank in above 20001. Richard S.mitb, named in the last count, was, for some years before and up to the time of the intestate's death, the collector of his rents; and, from the rents so collected, R. Smith used, during the intestate's life, to pay sums into the bank to the intestate's account. After the intestate's death, R. Smith was continued in the employment as collector by the succeeding remainder man. After the intestate's death, R. Smith paid in to the bank the three sums mentioned in the last count, which consisted of rents collected, accruing some before and some after the death of the intestate. The payments in respect of rents accrued before the intestate's death, and of the portion of rents due to his estate upon apportionment for the quarter current at the time of such death, did not together exceed the sum due from the intestate to the bank. At the time of the intestate's death one of the obligees of the bond, Edwin Smith, was alive : and Richard Smith, ou making the last of the three [632] payments (the 10001.) took back the bond from the bank. Richard Smith paid several other creditors of the intestate from rents accrued before the intestate's death, which he collected after the intestate's death. Subsequently to the making of these payments into the bank and to the creditors, administration was taken out, on 29th January 1849. Richard Smith died ou 2d September 1849. The jury found, in answer to a question from the learned Judge, that Richard Smith paid the three sums, mentioned in the last count, as in satisfaction of the debt owing to the bank from the intestate. On these facts the learned Judge (a) The Court sat in...
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