The plaintiff alleges that the late Peter Bitter died indebted to him in the sum of $714 67, and that the defendants have become liable to pay this debt, as intermeddlers in the affairs of the succession of said Bitter, “they having taken possession of his estate, consisting of personal property, and sold and disposed of the same without due and legal authority, with a view to appropriate the proceeds of the same to their own use and benefit.” No other cause of action is alleged against the defendants, they are sued merely as inter-meddlers.
To this petition the defendant Poelman excepted, on the ground that he could not be held liable as charged and demanded, until after due conviction under the penal laws of the State. Under the ruling of this court in the case of Walworth v. Ballard, recently decided, this defence must prevail; and though not urged by way of exception, on the part of Mrs. Bitter, it is, nevertheless, a necessary part of the plaintiff’s case to prove such previous conviction, and without such proof no recovery can be had against either of the defendants. See Act of 1820, 96; Greiner’s Digest, No. 8548, also Act of 1855, 400, sec. 9. Judgment affirmed.