Charleston,

Jan'ry. 1849*.*

#### *Elizabeth Chaplin v. Charles H. Hopkins.*

Complainant filed her bill, seeking to charge the defendant as *Executor de son tort,*whilst the assets of the intestate wei e in his hands; subsequently, after the greater part of the estate had passed into the hands of a regular administrator, who was no party to the suit, and had, for some time, been administered by him, a decretal order was made, directing that the sum found to be due complainant, with interest, should be levied on all the assets of the intestate which were in the hands of the defendant *at the commencement of the suit,*if they should be suflicient, otherwise, upon the proper goods and chattels of the defendant. On appeal, it was ordered that so much of the decree as authorised a levy on any other assets than those which were in the hands of the defendant *at the rendition of the decree,*be set aside — and that the complainant have leave to amend the proceedings by making the administrator a party defendant.

*Before*Dargan, Ch. *at Gillisonville, February, 1848.*

Charles Givens died in October, 1843, leaving considerable real and personal estate, but no will; and the defendant, Charles H. Hopkins, having possessed himself thereof without administration, became executor in his own wrong, and continued such until the latter part of the year 1845, when the Ordinary of the district dispossessed him of the personal estate, and took it into his own custody as a derelict estate, inventoried and appraised it, and after administering it for some six months, in 1846 committed the- administration to *183Edmund Rhett, the present regular administrator, who has, by permission of the Ordinary, from time to time, sold a considerable portion of the personal estate for payment of debts.

In February, 1845, and while the estate was in the hands of Charles H. Hopkins, the bill in this case was filed, seeking to charge him, as executor in his .own wrong, with a debt of the intestate. At February Sittings, 1848, the Commissioner made his report, bringing the estate in debt to the petitioner $1012 10; and exceptions were filed by the defendant, on hearing which his Honor made the following decree.

DargaN, Ch. On hearing the Commissioner’s report in this case, and the defendant’s exceptions thereto, it is ordered that the said exceptions be overruled, and the report confirmed and made the decree of this court. It is further ordered, that the complainant have leave to take out execution, to be levied for the amount of the said decree, and interest thereon from this date, of all and singular the assets of the said Charles. Givens, which were in the hands of the defendant at the commencement of this suit, if the same should be sufficient for that purpose, otherwise, then that the said decree and interest be levied from the proper goods and chattels of the said Hopkins.

From this decree the defendant appealed, on the following grounds.

1st. Because his Honor decreed that the petitioner should have her execution against the assets of Charles Givens, deceased, which were in the defendant’s possession at the commencement of her suit, whereas, it is respectfully submitted that his Honor erred in so decreeing, the assets having subsequently to the commencement of her suit, and long before the decree, passed into ihe hands of the regular administrator, by the authority of the Ordinary, and been, in part, sold to purchasers for valuable consideration, in payment of the liabilities of the intestate.

2d. Because, under his Honor’s decree, every derelict estate, instead of being protected by the Court of Equity, for the benefit of the parties interested therein, is virtually abandoned, without respect to the rights of either heirs or creditors, to the mercy of the first person' who chooses to commence suit on a fraudulent claim, against any intruder who may consent to be treated as executor in his own wrong.

3d. Because the decree being against the defendant as executor, and against all the assets of whatever kind in his hands at the commencement of the suit — the petitioner is, in effect, in a better condition by sueing the executor in his own wrong, than if she had sued the regular appointed *184administrator, inasmuch as she has her execution against both Ieaj[ an¿ personai estates of the intestate.

l Saund. 336, note 10. Hubbell v. Forgartie, 1 Hill R. 167. See also, Kinard 2 Rich. Eq. 247.

4th. Because his Honor’s decree is, in other respects, contrary to law and equity.

*E. fy H.*Rhett, for the motion.

*Curia, per*

DünkiN, Ch.

In the determination of the question submitted by this appeal, the Court can derive no light from the Chancery practice in Westminster Hall. Decrees are there enforced by proceedings against the person of the defendant. But the Act of Assembly in this State gives the party the process of *fieri fiadas*in addition to the ordinary remedy. Adopting the common law process, this Court would proceed on the same principles. Where the *executor de son tort*makes no defence, the judgment is, that the plaintiff do recover the debt and costs, to be levied out of the assets of the intestate, if the defendant have so much, jf not, then out of the defendant’s own goods. The decretal in this case directs that “the decree and interest should be levied on all and singular the assets of the intestate, which were in the hands of defendant *at the commence-this suit,*if the same should be sufficient,” otherwise, then of the proper goods and chattels of the defendant. This varies, both in form and substance, the common law execution. It is a part of the case that, after the suit was instituted against the defendant, the estate, or the principal part of it, passed into the hands of Edmund Rhett, Esq. who had, in the interim, taken out letters of administration, had sold part of the assets, and was distributing the same in due course of law. The decree was pronounced eighteen months or two years after he became administrator, and he was no party to the proceedings. The decretal order authorizes a levy on all the assets which were in the hands of the defendant at the institution of the suit, and which may, nevertheless, have since come to the hands of the rightful administrator. It is insisted on the part of the complainant, that the defendant, Hopkins, has left the State, and that the only fund on which she can rely for payment, is the estate of Givens, the original debtor. But the complainant should have made the rightful administrator a party before final decree, if she desired to reach the assets in his hands. As the practice is not well settled, it will be the object of the Court to aid her, so far as it can be effected without prejudice to the rights of others.

It is ordered and decreed that so much of the decretal order as authorizes a levy on any other assets than those which were in the hands of the defendant at the rendition of the decree, be set aside. It is further ordered, that the *185complainant have leave, if she be so advised, to amend the proceedings, by making the administrator of Charles Givens, deceased, a party defendant, and to establish her claim against the estate in the usual ‘form.

Johnston and Caldwell, CC. concurred.

Dargan, Ch. absent at the hearing.