majority">Pillsbury, P. J.

An examination of the testimony in the

record shows that upon the question of the personal liability of the defendant, to pay these notes, the evidence is very conflicting, and as the finding of the court where a jury is waived is entitled to the same consideration as the finding of a jury upon the controverted facts in a case, we are not prepared to hold that the finding of the court below upon the questions of fact is not sustained by the proofs.

The point made that the court erred in overruling the demurrer to the additional count, we consider not well taken.

The allegations of the count would seem to indicate that the pleader intended to charge the defendant in the character of an executor de son tort, and not upon any contract or agreement by virtue of which he incurred a personal liability.

The gravamen of the count is, that Thomas Gr.‘Wright died intestate, and that the defendant took possession of the personal estate, and sold, disposed of and converted the same to his own use, without administration or other lawful authority; and because of such acts the defendant became liable to pay. There are no averments in the count from which the law will imply a promise by the defendant to personally pay a debt of the intestate, but there is enough to charge him as an executor in his own wrong.

The proper form for declaring against an executor da son tort is to charge him generally as executor. 1 Chitty Pl. 51. The plaintiff cannot, it is believed, by filing such count as an additional one, deprive a defendant who is sued personally, of pleading any matter to such count that would be good if that count was the only one in the declaration, and he was sued as executor.

If the count sought to charge him as executor, then the plea was good to that count: Rattoon v. Overacker, 8 Johns. 126; Alvord v. Marsh, 12 Allen, 603; as the subsequent granting of letters of administration related to the death of the intestate, and made valid those acts which otherwise would be held to be tortious, and would make him properly chargeable as executor de son tort.

If, as plaintiff claims, this count is one charging a personal liability upon the defendant, then it was deficient in substance, and the demurrer should have been carried back and sustained to it, in which event the plaintiff could take nothing upon such count; and the result would have been the same as it was by the plaintiff abiding by his demurrer to the plea to said count.

As this judgment must be reversed upon the cross-errors assigned, it is not necessary to determine whether the court erred in refusing the plaintiff leave to file the proposed additional counts to the declaration, as, upon the case being remanded, the plaintiff can file the same, if he shall be so advised, and upon another trial, if it shall appear that the defendant has bound himself personally to pay the debts of the intestate in consideration of the conveyance to him by the heirs of Thomas Gr. Wright, as alleged in such counts, then, so far as this point is concerned, the plaintiff would establish a right of recovery; but if it should appear that his agreement was only to collect the debts due the estate, and apply them when collected, together with the proceeds of the personal estate, to the payment of the debts owing by the intestate, so far as they would liquidate such indebtedness, then we are of the opinion that he would not be personally liable, but the plaintiff should seek his remedy through the Probate Court, as administration has been granted upon said estate, and such court having taken upon itself the settlement of the estate, the attempt of the heirs to close up the estate without taking out letters, and the alleged agreement of the defendant with the other heirs so to do, would be superseded by such action of the Probate Court, and the estate must thereafter be settled by due course of administration, without regard to any such alleged agreement by the heirs.

On the trial below the plaintiff admitted that he was owing the defendant upon account, and the proof sufficiently establishes the amount due, and the court should have allowed the defendant his demand against the plaintiff, to the extent it was established by the evidence and if the plaintiff failed to showr a right of recovery upon his alleged cause of action, the defendant should have had a judgment for the full amount of his counter claims.

The judgment of the court below will be reversed and the cause remanded for a new trial, with leave to the plaintiff to amend his declaration if he shall so desire.

Judgment reversed.

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