
    James Glasgow, v. Richard A. Martin, Administrator of John Glasgow.
    Where one distributee, without administering on the estate of lhs intestate ancestor, takes and sells a portion of the personalty, promising to divide tho proceeds with his co-distributees, there is a full and sufficient consideration for his express promise. On this new contract there is a simple and adequate remedy at law, and any one of the distributees, without joinder of the others, may bring indebitatus assumpsit for his share, as money received and due.
    Tried before Mr. Justice Wardlaw, at Abbeville, July, Extra Term, 1846.
    This was an action of assumpsit brought to recover a share of the price for which the defendant’s testator sold a negro mail) Dave.
    Two special counts alleged that the negro belonged to the plaintiff, the testator, and their sister, Mrs. M’Alister. A third count was a general indebitatus assumpsit for money had and received, to which was annexed a bill of particulars claiming one-third of tho money rece ived for Dave.
    It appeared that Dave had belonged to Mrs. Glasgow, widow: that she died intestate in March, 1830, leaving a small estate, real and personal, three children above mentioned, and grand children, the issue of two pre-deceased daughters: that James Glasgow and Mrs. M’Alistcr had married, and left their mother fifteen years before her death: that John, the oldest, lived with her till her death, and remained at the same place afterwards, until he died in the autumn of 1843, at the age of seventy, having married, for the first time, a year before his death, and leaving a widow and one child: that no administration was granted for the estate of Mrs. Glasgow, but her real . .. was divided in the Ordinary’s Court into five shares, and her personalty was retained without division or account by John Glasgow*, that John sold Dave in 1835, for $500, one-half cash, and the other half payable in November, 1836, all of which he received; but part was received by a note on R. M’Comb, upon which indulgence was granted by John, so that a small part was due at his dearth, and has been paid to his executor since.
    
      There was testimony, that James frequently demanded, and always claimed, onc-third as his share of Dave: that the matter was often talked of between the two brothers, and between John and M’Alister and his wife, both before and after John’s marriage: that before the sale, the three children supposed that Dave belonged to them, and John consulted the other two about the sale, and promised to divide the proceeds into three shares, one for himself, one for James, and one for their sister: that when John was very sick before his marriage, he was asked about a will, and said it was of no use, as there were only three of them any how, and James and his sister would get all he had: that whilst John remained single, James and Ids sister, although they claimed their shares of Dave, were not very urgent, expecting to succeed to all of John’s property: and that after John’s marriage, James scolded about Dave, and John (who had often before his manage promised to pay him) again repeatedly said that he would pay as soon as he got the money from M’Comb, if James would be easy.
    A motion for non-suit was made, on the grounds indicated in the Grounds of Appeal, which was refused.
    The presiding Judge submitted it to the jury to determine whether the possession of Dave, which John Glasgow had held for four years before the sale, was accompanied by circumstances and acknowledgements, showing that it was not adverse: whether since the sale, John Glasgow had made express promises to pay, in consideration of his equitable liability: and whether these promises had been so repeated, and at such intervals, as to prevent the Statute of Limitations from barring the demand. If these questions should be found in the affirmative, he thought the plaintiff would be entitled to a verdict for one-fifth of the money which John Glasgow had received for Dave.
    The jury found for the plaintiff $100, without interest.
    The defendant appealed and renewed, in the Court of Appeals, his motion for a non-suit, and for a new trial on the grounds, viz:—■
    
      For a non-suit. 1st. Because the proof varied from the first and' second (the special) counts of the declaration.; that the third count should have been special, to avoid the plea of the Statute of Limitations; and that his Honor erred in ruling the declaration in these respects sufficient.
    2d. Because his Honor held, that though there was no administration nor will, a sale, by a distributee, of a negro, Dave, the property of Nancy Glasgow, the intestate, a legal consideration to support a promise of payment by defendant’s testator to plaintiff.
    3d. Because his Honor held, an action could be maintained by one distributee of five, under the circumstances above stated, without a resort to a Court of Equity.
    
      For a new trial. 1st. Because his Honor expressed the opinion, that defendant’s testator could be sued as executor of his own wrong, by a distributee, in an action oí assumpsit.
    2d. Because his Honor left to the jury a question of adverse possession, when the proof was, that John Glasgow held for at least five years after his mother’s death, without demand or claim.
    3d. Because the verdict was contrary to law and evidence.
    Thompson & Fair, for the motion.
    Perrin & M’Gowan, contra.
    
   Richardson J.

delivered the opinion of the Court.

The questions made at the trial of this case, arising under the Statute of Limitations—the alleged adverse possession of the negro by John Glasgow, and whether he expressly promised to pay to the plaintiff one-fifth of the price received, have all been settled by the verdict, under satisfactory judicial instruction given to the jury.

The questions for this Court now to decide, are, therefore, 1st. Whether there was a sufficient legal consideration for John Glasgow’s express promise to pay.

The fact is, that the negro belonged as much to James as to John—though neither had a strict legal right; but John having the possession, sold him without taking out administration upon the estate of their ancestor, Mrs. Glasgow; and then promised to divide the price.

Here then we find a full moral consideration for John’s express promise, which would be, legally speaking, sufficient to support the verdict, for one-fifth of the price received. But I would go much farther, and say, he had practically received money belonging to James. For although no administration had been granted on the estate of Mrs. Glasgow, it is not allowable for him who has taken upon himself the office of an executor, and received the money, to avail himself of his wrongful intermeddling; because, he at least is bound by his assumed character as executor.

Having thus settled the inquiry into the legal consideration for the promise, we are brought to the true question of the case, i. e., whether James could legally sue at law, and alone, for his own distributive part of the five hundred dollars received by John. The negro had been taken from the estate of Mrs. Glasgow, and converted into money by John, with the consent of the distributees; and then he promised to pay James his fifth part. Under what reasoning, or with what justice can John deny, that he has made himself debtor to James for his one-fifth? For example; five persons own a negro; for that is what John, James, and the other distributees assumed, and are bound by the assumption, i. e., as between themselves, they agree that one shall sell the negro, and answer to the rest and to each for his part: accordingly, the party confided in does sell and receive the price. With what reason can this party resist the several demands of the others ? by urging that they must proceed against him jointly, i. e., in this case under a legal administration, and as if they were partitioning the original chattels of the estate of Mrs. Glasgow. But the answer is obvious—all that has been settled, and a new contract made: and we do not require circuity of action, nor the aid of equity, when there is a simple and adequate remedy at law under the contract made.

If correct in this exposition of the proper position of the plaintiff and defendant, the only remaining question, about the form of action, is equally answered. A general indebitatus assumpsit for money received and due, was the proper form of action.

The appeal is, dismissed.  