
    Jones’s Administrator v. Logan & McMorris.
    
      Detinue for Watch.
    
    
      Estoppel against administrator. — An administrator cannot maintain an action for the recovery of a watch, which the friends of the intestate pawned to procure his coffin, if he was a party to the transaction, though not then the administrator, and the price of the coffin has not been paid; but proof of his presence and passive assent merely is not sufficient to defeat his action.
    Appeal from the Circuit Court of Elmore.
    Tried before the Hon. James Q. Smith.
    J. Palknek, for the appellant.'
    Watts & Troy, contra.
    
   B. F. SAFFOLD, J.

The appellant sued the appellees, in detinue, for the recovery of a watch, the property of his intestate. The latter became possessed of it under the following circumstances : Immediately after the intestate’s death, Hughes and others, his friends, pawned his watch to the defendants, for a coffin, which they would not sell unless the price was secured. Hughes testifies that the plaintiff, not then the administrator, agreed to the transaction ; but he says, he went with the party to the defendant’s store, and offered to pledge his own watch. They refused to take it, and he was proceeding to get the coffin elsewhere, when he was informed of the arrangement made, from which he did not dissent. The court charged the jury to find for the defendants.

The pledge, or bailment of the watch, was made without authority, and, consequently, transferred no interest in it to the defendants. If the plaintiff participated in it, he cannot recover the watch, without paying the money for which it was pledged. If he did not, he may. 1 Williams on Ex’rs, 334, 527; Whitehall v. Squire, 1 Salk. 295. As he was not administrator at the time, his mere presence and passive. assent to the transaction is not sufficient to defeat his suit. He must be shown to have been a party to it. There was more of conflict in the testimony than authorized the charge of the court.

The judgment is reversed, and the cause remanded.  