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In the Exchequer Chamber.—King et al v. Reginam. with the statement of the conspiracy; and distinct allegation that the parties did defraud then there is no uncertainty. R. v. Spragg, If the charge had been a conspiracy to do 2 burr. 930; 1 W. Bl. 209. [Parke, B.- those acts, it would have been a good indiciI think that you cannot draw up a subsequent ment for a conspiracy. Parke, B.—Because allegation in the indictment to help the gene- the charge is, that the parties did the act in rality of a preceding part; bat, by the incor- pursuance of an agreement, it is contended, poration which you propose, do you make a that that is equivalent to an allegation that statement of an indictable offence ? Alderson, they did conspire to do an act which they afB.—The only decision in R. v. Spragg, 2 terwards committed. Now, every indictment Burr. 930; i W. Bl. 209, was, that it was must contain a direct averment of an offence. an executed conspiracy, here the indictment Is it, then, enough to say, that, in pursuance states the offence generally, and then splits it of a certain conspiracy, they did obtain goods? into parts. Pollock, C. B.—There is a con- | The offence consists of an illegal agreement secutive statement of a number of facts in and an act.) Taking the whole together, the pursuance of the conspiracy; that summary indictinent contains a charge of a conspiracy must be rejected. Parke, B.-Do you pro- to defraud particular persons. In R. v. Peck, pose to bring up the overt acts, so as to read 9 Adol & Ell. 686, it was held to be no obthe allegation of certain persons, to wit, the jection that the indictment did not name the persons thereafter described ? If you bring creditors who were to be defrauded. down the charge of the conspiracy, and the latter allegation is in pursuance of the con- Pashley, in reply. spiracy, will that do? The whole is to be

Cur. ad. vult. read together, and then it would appear that the certain persons mentioned in the former Tindal, C. J., delivered the judgment of part meant certain persons hereinafter named the court.--In this case, the learned counsel

Alderson, B.-Do you say that the conspi- for the plaintiff in error relied mainly upon racy is to defraud only those persons who two objections: the first, that the judgment were defrauded ? The intention seems to of the learned judge pronounced at Nisi Prius have been to defraud any persons from whom under the provisions of stat. 11 Geo. 4, and they could obtain goods. The other way of 1 Will. 4, c. 70 \ 9, was erroneous, inasmuch reading the indictment would have exceed-, as it was entered on the postea in language ingly hampered the prosecution at the trial. which the law does not recognize as proper How could this charge be made out to be a for that purpose, and he cited the case of R. conspiracy to defraud the particular parties?] v. Kenworthy, 1 B. & C. 711, and the several All the parties were equally parties to the authorities therein referred to. The form contrivance. [Pollock, C. B.-As every tres- used on the postea is, that the judge propass is a continuing act, may not the conspi- nounced judgment and did order and adjudge, racy shift according to the stage of the execu- &c. We do not think it necessary to decide tion of it? May it not be averred, at one whether, when the judgment is pronounced stage of it, to be a conspiracy to defraud the under the act of parliament above referred to, particular persons defrauded at that time?) the usual and appropriate language when R. v. Spragg, 2 Burr. 930; 1 W. Bl. 209, judgment is given by a court, namely, “it is supports that view of the case. Maule, J.- considered," must be made use of or not. Here the words, “in pursuance of” are used Perhaps it may be better that the established to describe overt acts, which have no visible words of act and form should not be omitted relation to the conspiracy. In R. v. Spragg on all future occasions. The second and more the acts were said to have been done, not in important objection was, that the indictment pursuance of,” but “according to” the con- is itself bad, and we are all, upon consideraspiracy: the party must be indicted according tion, of opinion that this objection must preto the conspiracy with which he is charged. vail. Mr. Pashley for the plaintiffs in error, The word “according” is a reciprocal term. argued that the indictment was bad, because If the indictment was according to the con- it contains a defective statement of the crime spiracy, the conspiracy was according to the of conspiracy, and we agree that it is defecindictment. I wish to throw the first alle- tive. The charge is, that the defendants begation of the conspiracy into the statement low conspired to cheat and defraud divers of overt acts. [Pollock, C. B.-If you take liege subjects, being tradesmen, of their goods, all the overt acts, the indictment contains a &c. The objection is, that these persons

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Court of Conimon Pleas.-Paine v. Hathaway. should have been designated by their christian credit, without any averment of the use of or surnames, or an excuse given, such as, that false tokens, is not an indictable misdemeanor: their names are to the jurors unknown, be- and, if it is said, that, because it is averred to cause the allegation imports that the intention have been done in pursuance of the conspi. of the conspirators was to cheat certain defi- racy before mentioned, it inust be taken to be nite individuals; and, if the intention was to equivalent to an averment that the conspiracy cheat indefinite individuals, as, for instance, was to cheat the named individuals of their those whom they should afterwards deal with goods, the answer is, first, that it does not or afterwards fix upon, it ought to have been necessarily follow, that, because the goods described in appropriate terms, shewing that were obtained in pursuance of a conspiracy the object of the conspiracy was, at the time to cheat some persons, the conspiracy was to of entering into it, unascertained, as was in cheat the persons from whom the goods were fact done in R. v. De Berenger, 3 M. & S. obtained; they might have been obtained 67, and Reg. v. Peck, 9 Adol. & EH. 686. It from A. in execution of an ulterior purpose to was argued, that, if, on the trial of this indict- cheat B. of the goods: and, secondly, another ment, it had appeared that the intention was answer is, that, if the averment is to be taken not to cheat certain definite individuals, but to be equivalent to one that the goods were such as the conspirators should afterwards obtained from the named individuals in purtrade with or select, they would have been suance of an illegal conspiracy to cheat and entitled to an acquittal; and we all agree in defraud those named individuals of their this view of the case, and think that the rea- goods, it would still be defective, as not consons assigned against the validity of this part taining a direct and positive averment that of the indictment are correct. But it was the defendants did conspire to cheat and deargued by the learned counsel for the crown, fraud those persons, which an indictment for that, supposing these objections to be well/a conspiracy, when a conspiracy itself is the founded, this defect in the allegation of con- crime, ought certainly to contain. The averspiracy was cured by referring to the whole ment describing the offence ought to be direct of the indictment, the part stating the overt and positive. The other allegations of what act as well as that stating the conspiracy. are termed overt acts are open to the same The case of R. v. Spragg, 2 Burr. 930 was objection; in none of them is there a complete cited as an authority that the whole ought to description of a common law misdemeanor be taken together. The point decided in that independent of the conspiracy; and the allecase appears to have been merely this, that, gation of the conspiracy is insufficient, and in an indictment for a conspiracy, although not direct and positive. For these reasons, the conspiracy may be insufficiently charged, we are of opinion that the indictment is de. yet, if the rest of the indictment contains a fective, and that the judgment of the Court good charge of a misdemeanor, the indictment of Queen's Bench must be reversed. is good; and Lord Mansfield distinguishes between the allegation of an unexecuted conspiracy to prefer an indictment, as to the sufficiency of which he gave no opinion, and In 1784, the Benchers of the Middle Temthat of an actual preferring of the indictment ple, which comprise all the most learned men inaliciously, and without probable cause, which of the Bar, who are members of the society, he calls “a complete conspiracy actually car- brought an action against a lighterman for ried into execution," and this he holds to be driving his cart against their wall and damaclearly sufficient; and no doubt it was so, for, ging it. When the cause came on it was rejecting the statement of the unexecuted found that they had sued in London instead conspiracy, the indictment undoubtedly con- of Middlesex; a nonsuit was entered, at.tained a complete description of a common tended by a hearty laugh at the luminaries law misdemeanor. But, if we examine the of the law. allegations in this indictment, there is no suffieient description of any act done after the conspiracy which amounts to a misdemeanor A CRIMINAL, after listening to the conat common law. None of the overt acts are demned sermon which preceded his execushewn by proper averments to be indictable tion, turned to a companion and remarked, of themselves. The obtaining goods, for in- in the preacher's hearing, “a very good ser stance, from certain named individuals, upon mon, but rather too personal.”

THE

New

York BegaObserver

ver,

ISTRATION HAVING RI LATION

Vol. IV.]

NEW YORK, FEBRUARY, 1846. [Monthly Part. THE GRANT OF LETTERS OF ADMIN

F ADMIN ordinary.” Pusot, J., said, “ When two per

sons are made executors, there is a difference TO THE DEATH OF THE INTESTATE.

between the case of one of them refusing and

both of them declining to act. If one only It has been for some time a question of very refuse, and the other administer, the former considerable importance in the courts in Eng- may come in afterwards and administer with land, as to what, if any, acts an administrator him; but if both refuse before the ordinary, may do before the grant of administration to they can never afterwards administer as ex. him, so as to bind him after such grant. There acutors, under the will, and the testator has, are cases to be found in which it has been in fact, no executors, as in this case. Then, held that letters of administration have a re- as to giving color, the defendant has confessed lation back to the death of the intestate. We a possession in the plaintiff; and even if the propose to enter at some length into an ex- plaintiff had no actual possession, the color is amination of the principal cases on which the good, for it is a matter of law whether the doctrine is based.

administration, by the plaintiff, of the deAmong the earliest of the cases in support ceased's effects, would be good before letters of the proposition that letters of adıninistra- granted to him; and that being so, it is bettion have relation back to the death of the ter to show the matter as it is to the court intestate, is a case in the Year Book, 36 Hen. than to plead the general issue. And I think 6, fol. 7. To trespass by an administrator it there is no question but that this plaintiff has. was pleaded that the deceased made J. C. and his action de bonis asportatis before adminis. J. S. his executors, and died; after whose tration granted, because it will always be death the goods came into the possession of understood that administration shall reckon the plaintiff, and that the defendant by the back from the time of the death.He also command of J. C. and J. S. took them out of held the command given to the defendant by the plaintiff's possession; that afterwards J. the executors to be valid; among other reaC. and J. S. refused before the ordinary, upon sons for this, that the executors at the time: which letters were granted to the plaintiff. of the order made, had full authority to give Verification. Several objections were made it, the cesser of their authority by refusing to the plea. Needham, J., said, “with respect before the ordinary, was an act to which the to the point that there is not sufficient color defendant was neither party nor privy. This because the defendant has not alleged posses-case was adopted by Lord Hale as authority sion in the plaintiff since administration in the case of Long v. Hebb and others, granted to him, I think the color here given Styles 341. In an anonymous case in Comis sufficient; for I think that the allegation berback, p. 451, Lord C. J. Holt is reported of possession before letters of administration to have said, “If a widow, after the cleath of granted is sufficiently good color, because husband, seize his goods without obtaining when the executors refuse before the ordinary, letters of administration, although she afterand the ordinary grants letters to the plain-wards dispose of them by will or otherwise, tiff, the powers of the administrator are un- yet the taking out letters of administration derstood to relate back to the death of the to the husband, may bring trover for these testator, inasmuch as the testator here is as goods, for an administrator may have trover if he had died without executors; and then, for goods taken after the death of the inteswhere the plaintiff was possessed of the goods, tate and before administration committed ; he could have had a good action as for his and although he declares of goods taken out own goods taken. He also held the command of his own possession, whereas they were of J. C. and J. S. to be sufficiently valid, al- taken before he was administrator, yet it is: thoagh they did afterwards refuse before the well enough, for the administration shall

Grant of Administration having relation to death of Intestate. have relation to the death of the intestate," therefore could not bring trespass, but the These cases seem to establish that the admin- action should have been conceived in trover, istration has relation back to the death of the for trespass can only be maintained in respect intestate; but it must not be concluded that of actual possession. Leave was given to it is so in every case. For we shall presently move for à nonsuit, on this point, or for a see that as to the acts of an · administrator de new trial on other points not necessary to be son tort, a contrary rule has been adopted. mentioned. In support of the rule it was But we now desire to draw attention to a contended that letters of administration did question which has been raised whether where not, for all purposes, relate back to the intesan administrator complains of an injury to tate's decease. For this, the cases of Whitehis intestate's estate done prior to his becom- hall v. Squire, 1 Salk. 295; Harrison's case, ing administrator, he should sue in trover or 5 Co. Rep. 28 b.; and Doe dem. Hornby v. in trespass. In the case in the Year Book, Glenn, 1 Ad. & Ellis, 49, were cited; and 36 Hen. 6, fol. 7, the form of action was tres- that trover, and not trespass, was the proper pass; but in Anon., Comberb. 451, it was form of action; the decisions in cases of banktrover. In Long v. Hebb and others, 3 ruptcy were relied on, viz: Balme and others Styles 341, Roll, C. J., said that letters of v. Hutton and others, 9 Bing. 471; 3 Moo. administration do relate to the time of the & Sc. 1; 1 Cr. & Mee. 262; 2'Tyrw. 17, 1620; death of the intestate, and not to the time of 2 Cr. & Jerv. 19; 2 You. & Jerv. 101, S. C: granting of them, and therefore an adminis- Garland v. Carlisle, 2 Cr. & Mee. 31; 4 Moo. trator may bring an action of treapass or a & Sc. 24; 3 Tyrw.705, S.C. In opposition to trover and conversion for goods of the intes- the rule, it was contended that the authority tate taken by one before the letters granted of an administrator does refer back to the unto him, otherwise there would be no remedy intestate's decease. The counsel cited and for this wrong done. Now by this it appears relied on Com. Dig. tit. Administrationthat trespass or trover might be brought in (B. 10.); Lor:z v. Hebb and others, 3 Styles such a case. Nevertheless the doctrine has 341, et supra. Tindal, C. J., said, “Two been denied even in the present day. The points have been raised in this case, the first latest case on the subject is Tharpe et ux v. one of much importance; namely, whether an Stallwood, 7 Jurist 492. That was trespass action of trespass is maintainable by an adde bonis asportatis, that the defendant on the ministrator for a wrong done before letters of 29th of July, 1842, took the goods of the administration have been taken out. The plaintiff Sarah, who was administratrix of L. defendant, who insists that such action cannot E. Profert was made of letters of adminis- be brought, relies chiefly on the analogy betration bearing date the 29th July, 1842. tween this case and those of the assignees of a The defendant pleaded not guilty" by stat- bankrupt estate suing the sheriff, in which it ute.” The deceased L. E. died on the 29th has been held, that although the assignee may June, 1842, at the house of C. in D., and left bring trover against the sheriff, yet he cannot there a quantity of furniture. The plaintiff bring trespass. I think the analogy not so Sarah was her sister, and on the 28th of July, strong as is contended. In one of the cases 1842, the plaintiff Tharpe went to the house cited, the sheriff was doing a lawful act. He in D. with three others to obtain the goods took the goods which were the goods of the of the deceased, part of which were placed in bankrupt, but in the present case the defena wagon at the door; but before they were dant is a wrong doer. Suppose the sheriff removed, one L. claimed under a will å right had had a writ to take the gocds of A. B., and to stop them, and afterwards the defendant, as the administrator bring an action against him, Cole's landlord, came and seized both of them and say that he conveyed away the goods of and the rest of what was in the house as a the deceased instead of those of A. B.: if it distress for rent due from Cole. The goods had been so, these goods were not the subject were then removed by direction of the land of the writ, and the sheriff would have been lord, and not given back till the rent 151. 10s. a wrong doer; the analogy, therefore, will not was satisfied, and which was paid under pro- hold." Then, looking at the state of the autest. On the trial it was not proved that any thorities, we are bound to yield them. First, rent was due; but it was submitted on behalf there is the authority in the Year Book, 36 of the defendant, that as Lambert was in pos- Hen. 6, which is adopted by Roll, when chief session under a will, the plaintiff had only a justice in the time of the Commonwealth, in right of possession as administratrix, and Long v. Hebb and others. Styles 341. and Practical Points. -Liability of Trustees. subsequently the two actions are spoken of was right that the sheriff should be liable in without any difference, in cases of adminis- the amount of the price of the goods which tration, in Comyn's Digest. Under this cur- he had taken and sold, made the observation rent of authority, therefore, and considering which he did.” that there is not anything unreasonable in There are, however, exceptions to the docthe case, we are bound to say, that this ac- trine that letters of administration relate back tion will lie. Indeed, it would be a strange to the time of the intestate's decease. This anomaly in the law, if it did not. It would will form the subject of an article in our next be strange that there should, in the case of ad- number. ministrators only, be an intermediate time, during which an injury might be committed,

Practical points. without any remedy. The defendant's rule therefore for a non-suit must be discharged.” Mr. J. Colt man agreed, saying, “I think that

LIABILITY OF TRUSTEES. the authorities in general show that trespass It has been held that one executor is not anand trover might be brought in a case like the swerable for the receipt of the other merely present, although it has been held that a man by taking probate, permitting the other to shall not be a trespasser by relation back. possess the assets, and joining in acts necesThat means, that if a man were not a tres- sary to enable him to administer. Hovey v. passer at first, he shall not be considered one Blackman, 4 Ves. 596. Thus in this case, afterwards. But here there has always been where a bill of exchange was remitted to two a trespass; and the real question is, who has agents, payable to them personally, who on the the action against the trespasser? I certainly death of the principal became his executors, think that there is no ground for saying that Lord Alvanley held that the mere endorsement a party entitled to possession of these goods, of the one after they were executors, in order and who has actual possession of some of to enable the other to receive the money, was them, cannot maintain that action against the not sufficient to charge him who did not rewrong doer.” Mr. J. Erskine said, “on the ceive it. See also Joy v. Campbell, 1 Sch. & first point, we must assume, from the verdict, Lef. 341. This rule, however, appears to be that there has been a trespass committed. The different in law. See Crosse v. Smith, 7 East. question is, by whom shall the action be 246. And it would appear from several rebrought? The interests of the deceased are cent cases, that, in equity, where an executor vested in the plaintiff Sarah; and it would or trustee allows his co-trustee to retain moappear that she is the person to recover against ney, he will be answerable for any improper the trespasser for any injury done to those in conduct on his part. Thus in Booth v. Booth, terests, unless there be some strict authority 1 Beav. 125, the retainer by one executor to the contrary. The authorities are strong of the amount of the clear residue, with to show that both trespass and trover may be the knowledge and concurrence of the othbrought in such a case as this; and no case ers, renders them all liable to the loss that has been cited in opposition to those in the old has happened. · Booth v. Booth, 1 Beav. 125. books; only a dictum of my brother Parke's And the rule laid down in this case by Lord in Carlisle v. Garland; and that rule was Langdale, Master of the Rolls, has been adnot necessary to the case then under his con- hered to by his lordship in the case of Linsideration; besides which, he puts it with a coln v. Wright, 4 Beav. 427, in which the cirdoubt: I think, therefore, that that dictum cumstances as to this were as follows:- In should not be put in opposition to these de- 1830, the residuary account, signed by the cided cases ;” and Mr. T. Creswell, speaking three executors, was passed at the stamp ofof the latter circumstance, said: “as to the fice, shewing a residue of 8081. At the end dictum of my brother Parke, the question of the year 1830, J. A. Lincoln paid the rethere was, not whether trespass should lie or mainder of what was due on account of his not; for if the reason of his observation be purchases to the defendant Wright. Wright looked into, it will be found that it turns upon had, in fact, received the whole of the residue, the point that, in trespass, damages are re- amounting to about 8001., which he never incoverable, and in trover they are not; and, vested in government securities, as directed therefore, he thinking it was unjust to punish by the will, but retained in his hands, and he a sheriff with damages, when he had but done from time to time, paid yearly 321. as interest what he considered his duty, but yet that it to the tenants for life. From the evidence in

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