
    *Lawson’s Ex’or v. Lawson.
    April Term, 1861,
    Richmond.
    1. Pleading and Practice -Executors—Assumpsity-Case at Bar.—A sick man receives a sum of money in hank notes which he hands to his wife for safe keeping until he should get well enough to put theminbank; and he dies a few days after. After his death his executor applies to the widow for the hank notes which she refuses to deliver to him, saying she intends to keep them. He sues her in assumpsit Cor the money, and the declaration contains only the common counts. Held: The action was well brought, and he is entitled to recover.
    2. Same—Same—Suit in Officiai or individual Capacity.—The cause of action not having occurred until the death of the testator his executor might sue for the money in his own name or as executor.
    3. Same—Same—Suits in Officiai Capacity—Sufficient Allegation.—If it was necessary to sue as executor, as the declaration commenced in the name of B as executor of the testator, though it alleged that the defendant was indebted to the plaintiff and promised to pay to the plaintiif, yet, in support of the justice of the case, it may be construed as a declaration in the plaintifC’s character of executor.
    This was an action of assumpsit in the Circuit court of the county of Alexandria, by Thomas A. Brewis, executor of John Eawson deceased, against Isabella Eawson. The declaration contained only the common counts, and whilst it commenced in the name of Thomas A. Brewis, executor of John Eawson, it charged that the defendant was indebted to the plaintiif, and promised to pay the plaintiif.
    The defendant pleaded “non assumpsit;” and on the trial demurred to the evidence. That evidence was that on the 3d day of June, 1851, T. A. Brewis, the plaintiff, *came to the room where John Eawson, the plaintiff’s testator, was sick in bed, and counted out to him a sum of money, upwards of six hundred dollars, in notes, and asked Eawson if he (Brewis) should carry the money back to the store. That Lawson said “No, he would be better after a while, and would then arrange it for the bank.” Lawson then handed the money to his wife, the defendant, and told her to put it aside until he felt better, and that he would arrange it for the bank. That John Lawson died on the 18th of June, 18S1; and that between that date and the time when Brewis qualified as executor of the estate of Lawson, Brewis asked Mrs. Lawson for the money which he handed to John Lawson, and Mrs. Lawson refused to give it to him, saying she intended to keep it.
    There was a verdict for $569.85, with interest from the 19th of June, 1851, until paid, subject to the demurrer to evidence; and upon the demurrer the court below gave a judgment for the defendant. Whereupon Brewis applied to this court for a supersedeas, which was allowed.
    Brent and Kinzer, for the appellant.
    P. J. Smith, for the appellee.
    
      
      See principal case cited in Vanderwerken v. Glenn, 85 Va. 13, 6 S. E. Rep. 806.
    
   LEE, J.

The money sought to be recovered in this case was the property of the plaintiff’s testator in the form of bank notes, and was handed to defendant, (his wife), a short time before his death, for safe-keeping until he should be better, when as he said, he would arrange it for the bank. It remained in her possession during his life, and at his death, which took place a few days after, it was still his propert3r. She made no claim to it as hers, during his life, nor, so far as appears, did she dispose of any part of it to her own use or that. of her husband. After his death the plaintiff, though before *he had qualified as executor under the wil-1 of his testator, called on the defendant for the money, but she refused to surrender it, saying that she intended to keep it.

Now as this money was part of the assets of the estate of the testator, it is clear that the plaintiff is entitled to recover it in some form of action, and in some character either individual or representative.

But it is said that if the plaintiff be entitled to recover, he cannot do so in this action, but should have declared on the special case, or in trover and conversion.

I do not think the plaintiff was bound to declare specially. The action of indebitatus assumpsit for money had and received will lie whenever one has the money of another which he has no right to retain, but which ex aequo et bono, he should pay over to, that other. This action has of late years been greatly extended, because founded on principles of justice; and it now embraces all cases in which the plaintiff has equity and conscience on his side, and the defendant is bound by ties of natural justice and equity to refund the money. In such a case, no express promise need be proved, because from such relation between the parties the law will imply a debt and give this action founded on the equity of the plaintiff’s case, as it were upon a contract, quasi ex contractu as the Roman law expresses it, and upon this debt founds the requisite undertaking to pay. Moses v. Macfarlan, 2 Burr. R. 1005, 1008, 1012; Per Buller, J., Straton v. Rastall, 2 T. R. 366, 370.

Here this money wTas part of the assets of the plaintiff’s testator, and it was the duty of the defendant ex aequo et bono, to pay it over to the plaintiff.

Nor do I think the plaintiff was bound to declare in . trover and conversion. The money handed to the defendant by the testator was in bank notes, and if it be conceded that upon the refusal of the defendant to deliver the same to the plaintiff,

trover might be maintained *as for a

tort, it by no means follows that assumpsit could not be brought. There are many cases in which a party aggrieved who has a clear remedy by action as for a tort, may waive the tort and sue in assumpsit. Thus an action against a common carrier is for a tort and supposed crime, but assumpsit will lie for the same cause. Per Lord Mansfield, Hambly v. Trott, Cowp. R. 371, 375.—Bo if a man takes a horse from another, and brings him back again, an action of trespass may be brought, but the owner may bring assumpsit for the use and hire of the horse. Ibid; If a bankrupt, on the eve of his bankruptcy, fraudulently deliver goods to one of his creditors, the assignees may recover the goods in trover, or waive the tort and bring assumpsit. Smith, &c., v. Hodson, 4 T. R. 211. If a stranger takes my goods and delivers them to another a contract ma3r be implied, and I ma3r bring an action of trover for them or of assumpsit to recover their value. Per Lord Abinger, Bassell v. Bell, 10 Mees. & Welsb. 350. In this case it was decided that the assignees of a bankrupt who after the bankruptcy had delivered goods to the defendant to meet an accommodation bill which they were about to give the bankrupt, might waive the tort and sue'in assumpsit. So a master whose apprentice has left him and entered into the service of another, who persuades him to remain with him after he had found out who he was and from what shop he had deserted, may waive the tort and bring assumpsit against the defendant for the work and labor of the apprentice. Foster v. Stewart, 3 Maule & Selw. 191. See also Curtis v. Bridges, Comb. R. 450; Eades v. Vandeput, 5 Easts R. 39; Lightly v. Clowston, 1 Taunt. R. 112. So if a man take the goods of another and sell them, the owner may waive the trespass and sue him for money had and received. Gilmore v. Wilbur, 12 Pick. R. 120; Foster v. Stewart, 3 Maule & Selw. 191. See also Jones v. Hoar, 5 Pick. R. 285.-—-Other illustrations may be derived from the cases, but I will not stop to give them. I think that in no case could the exercise of the right to elect between an action in tort and assumpsit be more appropriate than in this.—The bank notes were received and treated by the testator as money, and as such were received and retained by the defendant, and though trover might lie to recover the notes, the law will imply a promise to pay the amount to the plaintiff.

It is said however that the plaintiff can only recover in his character of executor, and that here he has not declared as executor but in his individual character.

The cause of action here accrued after the death of the testator. He had and could have, no cause of action against his wife, but her retention of the money gave to the plaintiff an action to recover it as part of the assets of the estate of his testator. And although the demand by the plaintiff was before his qualification as executor, yet the refusal to pay was not upon that ground but because she intended to keep the money as her own; and as she continued to keep it until after the plaintiff’s qualification as executor, his right to sue accrued immediately upon his qualification. Now where an executor sues in respect of a cause of action which accrued in the lifetime of the deceased, he must declare in his representative character. But where the cause of action accrued after the death of the testator, if the money recovered will be assets, the executor may declare in his representative character or in his own name. Mowry v. Adams, 14 Mass. R. 327; Kane v. Paul, 14 Pet. R. 33. But if necessary, the. declaration may, I think, in support of the justice of the case, be considered as a declaration in the plaintiff’s character as executor. The Circuit court so thought, for the judgment for costs against the plaintiff directed them to be levied of the assets of his testator. The plaintiff declared as executor *of John Lawson, and the other allegations referring to him may reasonably be considered as referring to him in his character of executor; and upon the demurrer to evidence, I think, they should be so considered.

I think the Circuit court erred in rendering judgment for the defendant, instead of for the plaintiff upon the demurrer to evidence, and the same should be reversed and judgment now rendered for the plaintiff.

The other judges concurred in the opinion of Lee, J.

Judgment reversed, and entered for the plaintiff.  