#### JOHN McMORINE v. GEORGE STOREY, Ex’r.

One who intermeddles with the goods of a deceased person, after the will is proved, or administration granted, cannot be sued by a creditor as executor de son tort, unless where he claims under a fraudulent deed. But if he had intermeddled before the appointment of a legal administrator, he may be charged as executor de son tort, then being a legal administrator at the date of the writ.

This was an action of Assumpsit brought by the plaintiff against the defendant to charge him as executor de son tort of one David Davis. The defendant pleaded ne unques executor, and the cause was tried on this issue at Pasquotank, on the last circuit before his Honor, Judge Settle.

The plaintiff proved his debt against Davis, and his insolvency. He then exhibited the record of a suit which had been determined in Pasquotank Superior Court, at the Spring Term, 1835, at the instance of John Williams the rightful administrator of the same David Davis, against one Joseph Davis. It was admitted that John Williams then was and still continued to be the rightful administrator of David Davis. This suit was brought for the recovery of certain slaves then in the possession of Joseph Davis, and alledged to be the property of David Davis’ administrator. It was further proved by the plaintiff that on the trial of that suit, Joseph Davis set up a claim to the slaves as his own property, under an execution sale against David Davis, alledged to have been made by one Hezekiah Cartwright formerly a constable of Pasquotank county. By the record of that suit, it appeared simply that the jury found a verdict therein in favour of the defendant. The plaintiff then proved by Cartwright that he never made a sale of David Davis’ property, and that he knew nothing of the sale of the negro woman, who, with her children, were the negroes in controversy in the action referred to at the instance of Wil*88liams. It was further proved by the plaintiff that David had been in possession of these negroes for fourteen or fifteen yeats before his death, after which they went into the possession of Joseph Davis, who continued to hold them until his death, which occurred about a year after the death of David. After the death of Joseph Davis the slaves were taken possession of by the defendant, his executor, who claimed them as the property of his testator.

June, 1838.

His Honor charged the'jury that if they believed that the alledged conveyance from David to Joseph Davis was made with the intent to hinder, delay or defraud the creditors of David Davis, it was fraudulent and void, and if Joseph Davis in the action that was brought at the instance of the rightful administrator of David, set up a fraudulent claim to the negroes, and defeated that action, then a creditor of David would have a right to maintain this action; and if they believed that the plaintiff had proved his claim against David, he was entitled to recover. The jury under this charge, found a verdict for the plaintiff, and the defendant appealed.

A. Moore for the defendant

contended that where there is a rightful executor, no other can be sued as executor de son tort except in the case of a fraudulent transfer of goods by the testator, and that in this case there was no evidence of such a fraudulent transfer, and he cited the cases of Bayner v. Robinson, 3 Dev. 439, and’ Norfleet v. Riddick, Ibid, 221.

Kinney and J. H. Bryan for the plaintiffs

insisted that as there was a judgment against the rightful executor in the suit brought by him for the negroes, the creditors could not get their money unless they be allowed to sustain this action, and they cited Osborne v. Moss, 7 Johnson’s Rep. 160.

Daniel,-Judge.

The plaintiff was a creditor of David Davis deceased, and he has brought this action of assumpsit against the defendant, charging him as executor de son tort of the said Davis. Plea — ne unqv.es executor. The case states that before the time the slaves (which were assets of David Davis’ estate) came to the possession of Storey, the defendant, there had been a legal administrator of David Davis appointed. — There is nothing in the case to shew, why the legal administrator could not in his action, have recovered *89the slaves of Storey. There never was any conveyance or alienation of them by David Davis to any other person, either good or fraudulent as to his creditors. The law seems to be settléd, that when the will is proved, or administration is granted, and another person then intermeddles with the goods, this shall not make him executor de son tort by construction of law, because there is another representative of right against whom the creditors can bring their actions; and such a wrongful intermeddler is liable to be sued as a tresspasser — Williams on Ex’rs, 139. If the defendant had intermeddled with the assets before the appointment of the legal administrator, the plaintiff might have- then sued him as executor de son tort, notwithstanding there had been at the date of his writ, a legal administrator. Kellorn v. Westcombe, Freemen, 122—Williams on Ex’rs, 139. But here the inter-meddling by the defendant with the assets, was after the appointment of the legal administrator; therefore the plaintiff had no right to charge Storey in an action as executor of his own wrong. There is nothing in. the case to show that David Davis ever made any conveyance of the slaves to Joseph Davis for the pursose of defrauding his creditors, or for any other purpose. The charge of the Judge to the jury, was upon a supposed state of facts which did not exist. We think there must be a new trial.

Per Curiam. Judgment reversed.