Page:Harvard Law Review Volume 9.djvu/74

46 46 HARVARD LAW REVIEW. as a survival, especially when I connect it with that next to be mentioned. As late as Lord EUenborough's time it was the unquestioned doctrine of the common law that the executor was answerable abso- lutely for goods which had come into his possession, and that he was not excused if he lost them without fault, for instance, by rob- bery.^ Now it is possible to regard this as merely one offshoot of the early liability of bailees which still lingered alive, although the main root had rotted and had been cut a century before by Chief Justice Pemberton, and by the mock learning of Lord Holt.^ It is explained in that way by Wentworth,^ who wrote before the early law of bailment had been changed, but with some suggestions, of difference and mitigation. If this explanation were adopted we only should throw the discussion a little further back, upon the vexed question whether possession was title in primitive law. But it is undeniable that down to the beginning of this century the greatest common-law judges held to the notion that the execu- tor's liability stood on stronger grounds than that of an ordinary bailee, and this notion is easiest explained as an echo of a time when he was owner of the goods, and therefore absolutely account- able for their value. In the Chancery, the forum of trusts, it is not surprising to find a milder rule laid down at an earlier date, and no doubt the doctrine of equity now has supplanted that of the common law.* There is no dispute, of course, that in some sense executors and administrators have the property in the goods of "the deceased.^ I take it as evidence how hard the early way of thinking died that as late as 1792, the King's Bench were divided on the question whether a sheriff could apply the goods of a testator in the hands of his executor in execution of a judgment against the executor in his own right, if the sheriff was notified after seizure that the goods were effects of the testator. As might have been expected the Rolle, I Atk. 165, 172; Scott v. Surman, Willes, 400, 403, 404. Rightly condemned quoad hoc in Re Hallett's Estate, 13 Ch. D. 696, 714, 715. See also Miller v. Race, I Burr. 452, 457, S. C. i Sm. L. C. 1 Crosse v. Smith, 7 East, 246, 258. 2 King V. Viscount Hertford, 2 Shower, T72; Coggs v. Bernard, 2 Ld. Raym. 909. The Common Law, Lect. 5, esp. p. 195. Morley v. Morley, 2 Cas. in Ch. 2. D. 562; Stevens v. Gage, 55 N. H. 175. See Morley v. Morley, 2 Cas. in Ch. 2 (1678). 5 Com. Dig. Administration (B. 10). Cf., Wms. Exors. (9th ed.) 558.
 * Executors (14th ed.), 234.
 * Lord Hardwicke in Jones v. Lewis, 2 Ves. Sen. 240, 241 (1751) ; Job v. Job, 6 Ch.