Winchell v. Noyes

[305] The opinion of the court was delivered by Redfield, J. We should be inclined to believe, that the present plaintiff, as administrator de bonis non, succeeded to all rights of action, existing on behalf of the estate, whether they accrued during the life time of the testator, or since his decease, as well before, as since the resignation of the executor, the same as under the English statute of Charles. If that be so, the plaintiff might clearly have maintained trover, or trespass, for the goods taken by the defendant. And I see no reason to doubt, he might have waived the tort, and maintained indebitatus assumpsit for the money, which the defendant received upon the sale of the goods. But there never was, in form, or in fact, any sale of the goods to the defendant. It is not enough to waive the tort; there must be some way to make out a sale of the goods, — which is impossible. There is not in the case the very first thing, from which to infer a sale to any one from the estate. The case cited from New Hampshire is the only case in the books, where any such doctrine has been held, and that case has never been regarded as law, unless it be in that state. In all the English books, when assumpsit is brought for goods taken tortiously, the action is for money had and received. See Centre Turnpike Co. v. Smith, 12 Vt. 202, and cases cited. There is not, to my knowledge, a single case in the English books, to justify this action. Those cases, where one gets possession of goods by a sale to a bankrupt and the sale is held to be to the one employing such an instrument, are not like the present. There is a sale, and for the benefit of the one sued, and it is just, that he should be held as the principal. If this action is to be maintained, we see not, why assumpsit will not lie in every case of trespass de bonis asportatis, with equal propriety. Judgment affirmed.