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held not actionable. Lord DENMAN, Ch. J. says, "After full examination of the authorities, we think that, in actions of this nature, the declaration ought not merely to state that such scandalous conduct was imputed to the plaintiff in his profession, but also to set forth in what manner it was connected by the speaker with that profession."

I cannot distinguish that case from the present.

VAUGHAN, J.:

When the jury found that these words were not spoken of the plaintiff in his character of attorney, they took the sting out of the imputation. The rule for an arrest of judgment must be made absolute.

COLTMAN, J.:

Stanton v. Smith is the only case which has a tendency to support the argument for the plaintiff. *But it is a solitary case, and at variance with decisions before and since. To render words of this kind actionable, they must have relation to the trade or profession of the plaintiff.

Rule absolute.

DOYLEY

v.

ROBERTS.

[841]

LUCY v. WALROND, ADMINISTRATOR OF

WALROND (1).

(3 Bing. N. C. 841-848; S. C. 5 Scott, 46; 3 Hodges, 215; 6 L. J. (N. S.)

C. P. 290.)

Defendant, before taking out letters of administration, sanctioned an expensive funeral which a relation had ordered for the deceased: Held, that after taking out administration, defendant was liable in the capacity of administrator for this expense.

ASSUMPSIT for work and labour performed by the plaintiff, as undertaker, about the funeral of Caroline Walrond, deceased, at the request of the defendant, as administrator, and for hearses,

(1) It is clear from Brice v. Wilson (1834) 40 R. R. 461 (3 N. & M. 512) that an executor who has sanctioned an extravagant funeral is liable personally. In the above case the contention that the defendant should

have been sued personally and not
as administrator appears to have
been excluded by admission of the
character of executor by the letter
from London and by the pleadings.
-R. C.

1837. June 6.

[ 841 ]

LUCY v.

WALROND.

[ *842 ]

coaches, horses, and other necessary things used and applied in the furnishing and conducting the said funeral; for money paid for the use of the defendant as administrator, as aforesaid; and for money due from him in that capacity upon an account stated. Plea, that the defendant brought 531. into Court, to be paid to the plaintiff, and that he ought not further to maintain his action.

At the trial before Parke, B., at the last Gloucester Assizes, it appeared that Mrs. Caroline Walrond, the defendant's mother, a lady of fortune, died on the 31st of October, 1833, at Lasborough, in Gloucestershire. The defendant being at that time at Paris, Sir Bethell Codrington, the brother of the deceased, was sent for, and gave orders that the deceased should be buried at Dodington, the family seat, eleven miles from Lasborough, and that the funeral should be a respectable one. The funeral was performed by the plaintiff, at an expense of 76l. 7s. 1d., including 147. 1s. 6d. for a hearse and four horses, mourning coach and four horses, and two *post horses; and 51. 5s. Od. for fees to the clergyman, the payment of which the plaintiff failed to prove at the trial.

The defendant, in a letter from Paris, addressed to Lady Codrington, and dated November 10th, 1833, expressed his fear that even before he had heard of his mother's death the last melancholy offices must have been paid to her remains; and about the 24th of November, in answer to a letter addressed to him at his residence in London, by Lady Codrington, the defendant wrote as follows:

The

"We arrived in London on Tuesday evening, and I found your kind letter, and one from my uncle, inclosing a copy of my poor mother's will. I delayed writing until I could with some certainty say when I could leave London. I now hope to get away Monday or Tuesday next, and I will avail myself of your and my uncle's kind invitation to come to Dodington. next day I will ask you or Sir Bethell to be so good as to accompany me to Lasborough, to break the seals, and commence our sad duty. I am much obliged to you and to him for all you have done, which was certainly the best, and all that could be done. Would you or Sir Bethell have the kindness to do, what I am told must be done sooner or later, send some one to the house to take a list of all property whatsoever, in and out of

doors, which is not sealed up, with a view to its future valuation. This will shorten my melancholy task."

The following codicil was attached to the will of the deceased: "I wish to be buried in the nearest churchyard to the place in which I may die, with as little expense as possible; neither hearse nor carriage; but to be carried by twelve respectable labourers, who shall receive not less than a guinea each. I wish no friend or relative to mourn for me, that is, to wear mourning." The defendant refusing to pay for the removal of the *deceased to Dodington, resisted the plaintiff's claim for more than 53l., the estimated expense of a plain funeral.

The defendant took out letters of administration cum testamento annexo, in November, 1834, and the effects were sworn to be under the value of 4,000l.

The plaintiff relied on Rogers v. Price (1), where it was held that an executor who had assets sufficient for that purpose, was liable, upon an implied promise, to pay for a funeral suitable to the degree of his testator, furnished by the directions of a third person.

It was contended also, that the payment of money into Court, upon a declaration charging the defendant in the character of administrator was an admission of his liability, in that character, on the contract made for him by Sir Bethell Codrington; and that the letter from London was a ratification of all that had been done.

For the defendant, it was argued that the payment into Court under a plea of payment, admitted no liability on any contract for an expense of more than 531.; and that without producing the letter from Lady Codrington, to which the defendant's letter from London was an answer, that letter could not be esteemed a ratification of the order for the funeral, but seemed rather to relate to the disposition of the property.

PARKE, B. was of opinion that, provided the defendant had assets, of which there was evidence to go to a jury, he was liable for such a funeral as the testatrix had ordered; and for such a funeral as Sir Bethell Codrington had ordered, if the jury should be of opinion that the defendant's letter from London was a ratification of that order.

R.R.-VOL. XLIII.

(1) 32 R. R. 729 (3 Y. & J. 28).

52

LUCY

v.

WALROND.

[ *843 ]

LUCY v.

WALROND. [ 844 ]

[ *845 ]

The jury found a verdict for the plaintiff, Damages 16l. 8s. Od.

Maule moved for a new trial, on the ground that under the circumstances of the case, the defendant was not liable for more than the expense of an ordinary funeral. In Rogers v. Price (1) the executor was held liable to defray reasonable funeral expenses. But here an order was given by the brother of the deceased for an expensive funeral, in opposition to the directions contained in the will of the deceased. At that time the defendant was absent; there was therefore no privity between him and the plaintiff, unless it arose upon the subsequent ratification; and the letter of the 24th of November would not amount to a ratification, unless the letter to which it was an answer expressly stated the contract entered into by Sir Bethell Codrington: that letter, however, was never produced. But if, upon production, it had disclosed the terms of the contract with the plaintiff, the defendant at the time of the supposed ratification was not administrator, and therefore could not ratify, or be liable to an action in the character of administrator: if liable at all, it must have been on his own responsibility; and then, this action against him in the character of administrator was misconceived.

The payment into Court by plea of payment to a general indebitatus assumpsit did not admit more than payment under a rule of Court in the old practice, and such payment admitted merely that the defendant was liable to the extent of the sum paid in, and no further: Mellish v. Allnutt (2), Blackburn v. Scholes (3), Seaton v. Benedict (4). A rule nisi having been granted,

Talfourd, Serjt. and Lumley, who shewed cause, relied upon Rogers v. Price, and upon the finding of the jury, as to the effect of the defendant's letter of November 24th. It would no doubt have been more satisfactory if the letter had been produced to which that was an answer; but the answer itself was evidence to go to the jury.

28).

Maule and R. V. Richards were heard in support of the rule.

(1) 32 R. R. 729 (3 Y. & J.

(2) 14 R. R. 399 (2 M. & S. 106).

(3) 11 R. R. 723 (2 Camp. 341). (4) 3 Bing. 28, 32.

TINDAL, Ch. J.:

If this case was properly left to the jury, there is no reason for disturbing the verdict, the sum recovered being under 201. And it appears to us that there was evidence to go to the jury.

This is an action for work and labour performed in conducting a funeral, and for hearses, coaches, and horses supplied on the occasion, by the plaintiff, at the request of the defendant, administrator of the deceased. The defendant puts in a plea that he has brought 531. into Court, to be paid to the plaintiff, and that he ought not further to maintain this action. I am unable to perceive any difference between the effect of this plea, and of payment into Court under a rule, according to the old practice. The payment under the rule was directed against the further maintenance of the action, and when the present plea concludes against the further maintenance of the action, it leaves the question as to further damages the same as under the old plea of non assumpsit, and payment into Court under a rule. The defendant therefore is not bound by the admission, beyond the 531. paid into Court, and it is open to him to make any objections to the recovery of further damages. But this action is brought against him in his character of administrator, which is admitted by the course of the pleadings, and the question is, whether the defendant in that character has ratified the order given for burying the deceased at a distance *from her residence. I think the letter of the 24th of November, 1833, amounts to such a ratification.

It has been objected, first, that at the time he wrote that letter, it does not appear the defendant knew in what way the funeral had been performed; and secondly, that he could not then ratify the order for the funeral in the character of administrator, because he did not take out administration till long afterwards.

Now, the letter was written on a Saturday, the defendant having arrived in London on the preceding Tuesday, at which time the funeral had been performed; and I cannot help collecting that the writer must have been told of what had taken place as to the funeral: he says, "I found your kind letter, and one from my uncle, inclosing a copy of my poor mother's will. I am much obliged to you and to him for all you have done,

LUCY

v.

WALROND.

[846]

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