#### Josiah Turner *v*. Samuel Child,

From Orange.

Where an agent appointed one under him to sell the goods, and cdl. lect the defats of his principal, and upon the death of the latter, no. tifies his substitute that the agency was at an end, if the substitute acts in the agency after such notice, lie becomes *executor deson tort,*

An *executor deson tort*cannot retain for his own debt.

After the new trial had iti this cause at a former term of this Court, *(ante*25) it came on again before his Honor Judge Strange, on the last Circuit, when it appeared that there was no rightful personal representative of *Francis Child,*and that the Defendant had inter-meddled witn his effects under the following circumstances : *Francis Child*had appointed one *Clancy*his agent, who authorised the Defendant to sell on a credit, the property of *Francis,*for the purpose of paying debts due to the Defendant, and those for which he^was responsible. Before the expiration of the credit given at the sale, *Francis Child*died in the State of Tennessee $ upon learning this, *Clancy*refused to interfere with the property, and notified the defendant of his determination, who disregarding it, collected notes taken at the sale, to an amount larger than the sum due him, or that for which he was responsible.

The Defendant offered to prove *thatFrancis Child*carried to the State of Tennessee several horses, which were *332before his departure, the property of the Defendant. — •' But liis Honor thinking the testimony irrelevant, rejected it.

A verdict being returned for the Plaintiff, and a rule for a new trial discharged, the Defendant appealed.

The case was submitted without argument, by *Badger*for the Plaintiff, and by the *Attorney General and Deve-reux,*for the Defendant.

Taixou, Chief-Justice.

The case is somewhat different in its circumstances, from what it was when before appealed from, for it now appears that there was no rightful administrator on the effects of *Francis Child.*It follows thence, that if the Defendant has done any act which makes him liable as executor *de son tort,*the Plaintiff having established his debt, is entitled to recover. Another feature in thd case now is, that *Clancy*was appointed the Attorney in fact of *Francis,*and that the Defendant’s authority was derived under this agency.— Supposing therefore, that the Attorney was authorized to collect the money arising from the sale after the death of his principal, yet *Clancy*renounced the authority after hearing of the death of *F. Child,*and gave notice to the Defendant, that he had done so 5 but after this, when the Defendant was without a shadow of authority, he collected money belonging to the estate. This makes him an executor *de son tort,*and the remaining question is, whether the evidence of *F.*Child, having taken away horses belonging to the Defendant, was properly rejected. I think it was in no manner connected with the fact, which made the Defendant executor *de son tort,*viz : the taking into his possession ]the goods of his brother, and collecting bis debts ; and because if the Defendant meant to rely upon it, as authorizing him to retain, it was inadmissible. Such an executor cannot retain for his own debt, otherwise there would he a struggle among creditors to obtain possession of the goods, without obtain*333ing administration. If he pleads a retainer to satisfy his own debt, the Plaintiff may reply that he is executor *de son*tort, *(Alexander*v. *Lane, Yelv.*137). Nor can he defend himself by showing, that he has paid debts of deceased to the amount, of what he has received, unless he pleads *plene adminislravit, (Whitehall*v. *Squire, Carthew*104). I am of opinion that the case has been properly decided, and that the judgment be affirmed.

Per Curiam — Judgment affirmed.