ministrator may do nothing till letters of administration are issued; for the former derives his power from the will, and not from the probate, the latter owes his entirely to the appointment of the court. If a stranger takes upon him to act as executor, without any just authority, as by intermeddling with the goods of the deceased, and many other transactions, he is called in law an executor of his own wrong, de son tort, and is liable to all the trouble of an executorship; but merely locking up the goods, or burying the corpse of the deceased, will not amount to such an intermeddling as will charge a man as executor of his own wrong. Let us however see what are the power and duty of a rightful executor or administrator, who takes the administration of the estate on himself.

1. He must bury the deceased in a manner suitable to the estate which he leaves behind him; necessary funeral expenses being allowed, previous to all other debts and charges.

2. He must prove the will of the deceased: which is done either in common form, which is only upon his own oath before the court or its registrar; or per testes, in more solemn form of law, in case the validity of the will be disputed. In defect of any will, the person entitled to be administrator must also, at this period, take out letters of administration under the seal of the court; whereby an executorial power to collect and administer, that is, dispose of the goods of the deceased, is vested in him: and he must enter into a bond with sureties, faithfully to execute his trust.

3. The executor or administrator is to make an inventory of all the goods and chattels, whether in possession or action, of the deceased; which he is to deliver in to the court upon oath, if thereunto lawfully required.

4. He is to collect all the goods and chattels so inventoried. Whatever is so recovered, that is of a saleable nature and may be converted into ready money, is called assets, that is, sufficient, from the French assez, to make him chargeable to a creditor or legatee, so far as such goods and chattels extend.

5. The executor or administrator must pay the debts of the deceased; observing therein the rules of priority; otherwise, on deficiency of assets, if he pays those of a lower degree first, he must answer those of a higher out of his own estate. And, first, he may pay all funeral charges, and the expense of proving the will, and the like. Secondly, debts due to the crown on record or specialty. Thirdly, such debts are by particular statutes to be preferred to all others; as money due upon poor rates, for letters to the post-office, and some others. Fourthly, debts of record; as registered judgments and decrees in equity. Fifthly, debts due on special contracts; as

for rent, or upon bonds under seal. Lastly, debts on simple contracts, viz., upon notes unsealed, and verbal promises.

What has been stated as to the order in which the debts of the deceased are to be paid from the assets, refers only to legal assets, between which and equitable assets a distinction is to be made, the latter comprising every kind of property which comes to an executor's hands in any other than his legal capacity, and so can only be reached in equity. These are applicable in payment of all debts of whatever degree pari passu. And where the administration of assets falls into the hands of a court of equity, they are distributed in equal proportion, without regard to their nature or degree, except that voluntary bonds, or other special contracts without consideration, are postponed to other debts.

6. When the debts are all discharged, the legacies claim the next regard; which are to be paid by the executor so far as his assets will extend; but he may not give himself the preference herein, as in the case of debts.

A legacy is a bequest or gift of goods and chattels by testament, and the person to whom it was given is styled the legatee. This bequest transfers an inchoate property to the legatee; but the right is not perfect without the assent of the executor; for, if I have a general or pecuniary legacy of 100l., or a specific one of a piece of plate, I cannot in either case take it without the consent of the executor. For in him all the chattels are vested, and it is his business first of all to see whether there is a sufficient fund left to pay the debts of the testator; the rule of equity being, that a man must be just before he is permitted to be generous. And in case of a deficiency of assets, all the general legacies must abate proportionably, in order to pay the debts; but a specific legacy, of a piece of plate, a horse, or the like, is not to abate at all, or allow anything by way of abatement, unless there be not sufficient without it. Upon the same principle, if the legatees have been paid their legacies, they are afterwards bound to refund a rateable part, in case debts come in more than sufficient to exhaust the residuum after the legacies paid.

If the legatee dies before the testator, the legacy is a lost or lapsed legacy, and shall sink into the residuum, except it be a gift to a child or other issue of the testator, which does not lapse if the legatee die leaving issue which survives the testator. And if a contingent legacy be left to any one, as when he attains, or if he attains, the age of twenty-one, and he dies before that time, it is a lapsed legacy. But a legacy to one, to be paid when he attains the age of twenty-one years, is a vested legacy; an interest which commences in præsenti although it be solvendum in futuro; and if the legatee dies before that age, his representatives shall receive it out of the testator's per

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sonal estate, at the same time that it would have become payable, in case the legatee had lived,

Besides these formal legacies, contained in a man's will and testament, there is also permitted another death-bed disposition of property, which is called a donation causâ mortis. And that is, when a person in his last sickness, apprehending his dissolution near, delivers or causes to be delivered to another the possession of any personal goods, under which have been included bonds, and bills drawn by the deceased upon his banker, to keep in case of his decease. This gift, if the donor dies, needs not the assent of his executor: yet it shall not prevail against creditors, and is accompanied with this implied trust, that, if the donor lives, the property thereof shall revert to himself, being only given in contemplation of death, or mortis causâ.

7. When all the debts and particular legacies are discharged, the surplus or residuum must be paid to the residuary legatee, if any be appointed by the will; and if there be none, to the next of kin, who are to be investigated by the same rules of consanguinity as those who are entitled to letters of administration; of whom we have sufficiently spoken.* And this finishes our inquiry as to the different modes of acquiring personal property.

There is only one exception to this rule, viz., where the nearest relations are a grandfather or grandmother, and brothers or sisters; although all these are related in the second degree, yet the former shall not participate with the latter; for which exception it does not appear that any good reason can be given.

BOOK THE THIRD.

OF PRIVATE WRONGS.

CHAPTER I.

OF THE REDRESS OF PRIVATE WRONGS.

1. By the act of the party injured, viz.-1. Self-defence; 2. Recaption of goods; 3. Entry on lands; 4. Abatement of nuisances; 5. Distress for rent, &c.; what may be distrained; impounding the distress; replevin ; 6. Seizing heriots; and next, by the act of both parties, viz.-1. Accord; 2. Arbitration.- -II. By operation of law, viz.-1. Retainer; Remitter.

-III. By suit in court; courts of record and not of record; attorneys; counsel.

MUNICIPAL law was defined, at the outset of these commentaries, to be, "a rule of civil conduct commanding what is right, and pro“hibiting what is wrong." From hence it follows that the primary objects of the law are the establishment of rights, and the prohibition of wrongs, which gave rise to a division of our subject under two general heads; under the former of which, and in the second part of this treatise, fell a consideration of the rights that were established, and under the latter are now to be defined the wrongs that are forbidden and redressed by the laws of England.

These wrongs are divisible into two sorts; private wrongs and public wrongs. The former are an infringement of the private or civil rights belonging to individuals, considered as individuals; and are thereupon frequently termed civil injuries: the latter are a violation of public rights and duties, which affect the whole community; and are distinguished by the harsher appellation of crimes and misdemeanors. To a consideration of the first of these species of wrongs our attention is now to be directed.

The more effectually to accomplish the redress of private injuries, courts of justice are instituted in every civilized society, in order to protect the weak from the insults of the stronger, by expounding and enforcing those laws, by which rights are defined and wrongs prohibited. This remedy is therefore principally to be sought by

application to these courts of justice; that is, by civil suit or action. For which reason our chief employment now will be to consider the redress of private wrongs, by suit or action in courts. But as there are certain injuries of such a nature, that some of them furnish and others require a more speedy remedy than can be had in the ordinary forms of justice, there is allowed in those cases an extrajudicial kind of remedy; of which I shall first treat: and to that end, shall distribute the redress of private wrongs into three several species: first, that which is obtained by the mere act of the parties themselves: secondly, that which is effected by the mere act and operation of law; and, thirdly, that which arises from suit or action in courts, which consists in a conjunction of the other two, the act of the parties co-operating with the act of law.

Firstly. Of that redress which is obtained by the mere act of the parties.

This is of two sorts; viz., first, that which arises from the act of the injured party only; and, secondly, that which arises from the joint act of all the parties together.

Of the first sort is,

I. The defence of one's self, or the mutual and reciprocal defence of such as stand in the relations of husband and wife, parent and child, master and servant. In these cases, if the party himself, or any of these his relations, be forcibly attacked in his person or property, it is lawful for him to repel force by force; and the breach of the peace, which happens, is chargeable upon him only who began the affray. For the law, in this case, makes it lawful in him to do himself that immediate justice, to which he is prompted by nature, and which no prudential motives are strong enough to restrain. But care must be taken that the resistance does not exceed the bounds of mere defence and prevention; for then the defender would himself become an aggressor.

II. Recaption or reprisal is another species of remedy by the mere act of the party injured. This happens when any one has deprived another of his property in goods or chattels personal, or wrongfully detains one's wife, child, or servant: in which case the owner of the goods, and the husband, parent, or master, may lawfully claim and retake them, wherever he happens to find them; so it be not in a riotous manner, or attended with a breach of the peace. If, for instance, my horse is taken away, and I find him in a common, a fair, or a public inn, I may lawfully seize him to my own use; but I cannot justify breaking open a private stable, or entering on the grounds of a third person, to take him, except he be feloniously stolen; but must have recourse to an action at law.