
    Amos Goff v. Matthew D. Cook.
    1. Averments in Pleading.—A pleader must state such premises as warrant the deduction of liability as a matter of law; and courts have no power to supply omitted premises.
    2. Complaint in an Action by a Creditor Against an Executor de son tort.—Such a complaint must show, affirmatively, that there was personal property which the creditors of the deceased were entitled to have go into the hands of an administrator. It is not sufficient to show that the personal property of the estate is under S500 in value.
    3. Liability of Executor de son tort.—By the statute the measure of liability is the damage caused by the intermeddling. And so he who brings the action must show damage. And a creditor can only show damage by showing that the property intermeddled with was such as an administrator would be entitled to take possession and control of.
    4. Judgment in Action Against an Executor de son tort.—There can be no personal judgment in such action by a creditor. The proper judgment is that the intermeddler account to the probate court for the full value of the property and ten per cent, thereon. His liability is not to the creditor, but to the estate and the personal representatives of the decedent.
    Filed May 25, 1881.
    Appeal from Clinton Circuit Court.
   Opinion of the court by

Mr. Justice Elliott.

Matthew D. Cook instituted this action against the appellant and stated his cause of action substantially as follows: That John Bramwell died on the 2d day of August, 1878; that the deceased, in his lifetime, was indebted to the appellee in the sum of fifty dollars; that the said Bramwell died the owner of personal property of the value of $336.20; that the appellant unlawfully intermeddled therewith and appropriated it to his own use.

The court did wrong in overruling the demurrer addressed to appellee’s complaint by the appellant. The complaint is insufficient for the reason that it does not affirmatively show that there was personal property which the creditors of the deceased were entitled to have go into the hands of an administrator. The deceased may have had the property mentioned in the complaint, and yet the creditors have had no right to a dollar of it. It by no means necessarily results that because a man dies the owner of personal property, of less value than five hundred dollars, it must go to an administrator and be distributed to the creditors of the decedent. We cannot infer, from the fact that the deceased died the owner of personal property of less than five hundred dollars in value, that, therefore, the creditors are entitled to it. There is a premise wanting without which the conclusion would be entirely unwarranted. It is the business of the pleader to state such premises as warrant the deduction of liability as a matter of law, and cojurts have no power to supply the omitted premises. The conclusion which we have reached in the present case is substantially the same as that declared in Fuguson v. Barnes, 58 Ind. 169, where Howk, J., speaking for the court, said: We think it is clear that the ap-pellee should have averred in his complaint every fact necessary to show that he was entitled to the money sued for, or some part thereof.”

The statute provides that an executor de son tort shall be liable to the “extent of the damages” caused by his unlawful intermed-dling. 2 R. S. 495, § 15. This is the measure of the liability, for as the statute specifically provides a remedy and makes out the limits of the liability, there is no other liability than that created by statute. The person who brings the action must, therefore, show some damage, for under this statute there is no liability beyond the extent of the damage resulting from intermeddling. A creditor can only show damage by showing that the property intermeddled with was such as an administrator would be entitled to take possession and control of. In the absence of affirmative averments, we cannot presume that there was any damage resulting from the act charged against'the appellant. For anything that appears, the property never could have rightfully gone into the hands of an administrator.

The court below erred in rendering judgment against the appellant for a specific sum of money. In such a case as the present the creditor is not entitled to the ordinary quod recuperet judgment. The proper judgment is that the intermeddler shall account to the court of probate jurisdiction for the full value of the property in-termeddled with and ten per centum thereon. As said in McCoy v. Payne, 68 Ind. 327 : “ The liability of the executor de son tort is not to the decedent’s creditor, but to the decedent’s estate and his personal representatives; and, although the creditor may sue such an executor,’he cannot recover a personal judgment for his debt* but can only compel him to account for the full value of the decedent's property with which he has unlawfully intermeddled ‘ with ten per centum thereon.’ ”

Paige & Bayless, for appellant.

Judgment reversed at costs of appellee.

In Lynchburg, Virginia, a distinguished member of the bar, appealing to the court for the discharge of his client, wound up with the statement that if the court sent him on further trial, a stain would be left on his character which could not be washed off by all the waters of the blue ocean, and all the soap which could be manufactured from the ponderous carcass of the commonwealth’s attorney.” To this the ponderous attorney replied that, while he “ deemed it foreign to the case at the bar, he desired to advise the court, if they thought it advisable to boil his body into soap, they should look to the opposite counsel for the concentrated lye out of which to make it.”

A well known lawyer being perplexed over a point of law, called at the office of a brother attorney to consult him upon it. The latter remarked, with dignity, that he usually had pay for his advice. “ Then,” said lawyer number one, extending fifty cents, “tell me all you know, and give me back the change.”  