[46 a] vouchees. Ro. 34. first essoined, and then the other, with an idem dies always to the demandant, tenant, and vouchee. And now quin1.825. Winch. dena Pasc. which was the last day of the essoin, both the vouchees appeared, and at the same day my Lord Lisle tenant cast an essoin, both for himself and his attorney. And it was excepted unto, that this essoin lay not, according unto the book, 3 H. 7. 13. which being spoken to at the bar twice or thrice was at last spoken to by the court, and agreed, una voce, [by myself, Winch, and Nichols] that the essoin did lie. For first, there is no statute that takes away the essoin in this case, so then it is to be judged by reason, books, and precedents of court. Essoin 19.54. [47] Essoin 182. 5 Now, for books, that of 22 H. 6. is directly the principal case, and the essoin excepted unto there, as it is here; and it was allowed clearly by the court with this reason, that the tenant may say that the vouchee is not the same person, and may have divers other pleas against the vouchee; and 5 E. 3. Essoin 54. is the like, where the first vouchee was essoined after an essoin of his vouchee. And 13 E. 3. Essoin 6. Now the precedents are clear and common to the same purpose, and a roll of that book 22 H. 6. which is the very case, was found according to the book, between Crulle and Mansell, Mich. 22. H. 6. in the essoin roll. And so Hill. 34. H. 6., between Belgrave and Harding, and divers others; but the book of 3 H. 7. was not warranted by any roll, for I caused it to be searched. Now the reason of the case is this, that though the tenant had an essoin before, that was in another respect, that is to say, between him and the other demandants. But now he was in another order and degree of plea between him and the vouchee, who being not yet entered into the warranty, might, as before, either himself vouch, or the tenant; but if he were once actually entered into the warranty, then he could be no more essoined, nor the tenant, who had now done with the vouchee, and was also out of pleading against the demandants, because his plea was put into the mouth of the vouchee. And therefore the book 29 E. 3. 48. Simkin Simons' case, it was resolved that the vouchee and tenant may have either of them one essoin before they enter into the warranty. But now though the essoin be granted in respect of the pleas that may arise between the vouchee and tenant, as hath been said; yet it is to be entered between the tenant and demandant, and not between the tenant and vouchee, as the said book is, 29 E. 3. 48. And idem dies is still to be given to the parties not essoined. And though the essoin here were cast both for his tenant and attorney; yet it was good enough, being but a surplusage for the one. So the essoin was adjudged and adjourned here as due, & and is also the most safe, because it is error to deny the essoin, when it ought to be granted, and not è contra. [47 a] Co. 59. a. 5 Co. 39. b. Dy 26, 169. Cox vs. BARNSLY. Ancient demesne lands may be taken by elegit out of the king's court; but no KEBLE US. OSBASTON. [49] Verdict in the disjunctive, that the defendant, sued as executor de son tort, admin- Debt. istered or otherwise converted to his own use the goods of the intestate, is good. Co. B. Vide post. p. 52, Foster v. Jackson, n. (2.) A right of action once vested against an executor de son tort, is not taken away by a subsequent grant of administration to another person, though it was granted before action brought. 12 Jac. Rot. in the disjunctive. 5 Co. 33. b. Cr. Car. 89. William KeblE, executor of Robert Keble, brought an London. action of debt upon a bill obligatory of thirteen pounds Waller. Trin. thirteen shillings and four pence, against Francis Osbas- 4087. Verdict ton, executor of the testament of another William Keble. The defendant pleaded that the said William Keble, the supposed testator, died intestate, and that before this writ purchased, the administration of his goods was committed to one Edward Keble, who administered and still doth. [49 a] 1 Cr. 7. The plaintiff replieth, that William Keble died intestate, and that after his death, and before the administration aforesaid granted, divers goods of his (and names them particularly) to the value of this debt, came to the hands of this defendant, which goods the defendant, as executor to the said Keble, administravit seu aliter ad usum suum proprium disposuit et convertit; et hoc, &c. Whereupon issue was taken and found it against the defendant in the disjunctive as aforesaid, and it was adjudged for the plaintiff; for the point in issue is directly found, and so it is within the statute of jeofailes, and the issue also is not improper, for though the verdict be true, if either he did administer, or otherwise convert it to his use, yet both must be as executor, for so is the pleading and the verdict, and then it is but the same thing spoken two ways, one according to the proper style of law, the other acBr. Executor cording to common speech; and therefore if issue had been taken only that he had converted the goods to his wrong and then own use, perhaps it would have been good enough, especially if it were added as executor, as here it is. And since there was an execution in wrong before the admin565. 1 Cro. 88. istration granted, the plaintiff had cause of action vested in him, which shall not be taken away by the administration granted after, though it be before the action brought, the rather because those goods taken away by wrong before the administration shall not be assets in the hands of the administrator till they be recovered, or damages for them. (1) 165. 74. Execution. Executors by administration taken. 5 Co. 30. a. 34. a. Cr. El. 102,505, 89. (1) A stranger who, without lawful authority, intermeddles with the goods and effects of the deceased, or otherwise takes upon himself to act as administrator, becomes thereby an executor de son tort. But acts of necessity or humanity, such as locking up the goods, burying the corpse of the deceased and the like, are not such an intermeddling as will charge a man as such executor. Dyer 166, Stokes v. Porter. 2 Bl. Com. 507. See also, as to what acts will constitute a man executor de son tort, Bac. Abr. tit. Executors and Administrators, B. 3. 1. 2 Sel. N. P. 579. 1 Esp. Rep. 335, Femmings v. Jarrat. Peake's Cases 86, Hall v. Elliot. A person cannot be charged as executor de son tort, while he acts under a power of attorney made to him by one of several executors, who alone proved the will; but if he continues to act after the death of such executor, he may be so charged though he was himself named as one of the executors, and acts under the advice of the other executor who had not proved the will. 4 Mau. & Sel. 175, Cottle v. Aldrich. If administration be first granted and then another take the intestate's goods he does not thereby become executor de son tort. 7 Mod. 31. Per Holt C. J. No intermeddling with the freehold of the deceased will charge him as executor, but such intermeddling is a wrong done to the heir or devisee; 4 Mass. 659, Mitchell v. Lunt; and no action lies against such executor for waste by subjecting the real estate to be taken in execution. Ib. Such an executor has no legal control over the personal estate of the deceased, cannot maintain an action in right of the deceased, and has no authority to collect the effects. But he is liable to be sued either, 1st. By the creditors of the deceased; or 2dly. By the rightful administrator. let. His liability to the creditors of the deceased. In an action brought by a creditor of the deceased, if he pleads ne unques executor and it is found against him, he will be charged with the whole debt, though the goods which came to his hands be of ever so small value. Cro. Eliz. 472, Anon. 4 Mass. 658, Mitchell v. Lunt. Bac. Abr. tit. Executors and Administrators, B. 3. 2. 3. Neither can such executor, in such action, retain, by plea or otherwise, for a debt due from the deceased to himself; Cro. Eliz. 630, Ireland v. Coulter; 5 Co. 30. S. C.; even if his debt is of a higher nature, and the rightful administrator, after action brought, assent to such retainer. 3 T. R. 587, Curtis v. Vernon, affirmed on error, 2 H. Bla. 18. But an executor de son tort is, in general, liable to creditors only so far he has assets in his hands at the time of the action. He may therefore plead plene administravit in such action, and give in evidence payment of the just debts of the deceased, in due course of administration, to the amount of the effects which came to his hands; he will thus be allowed all such payments made to any other creditor in the same or a superior degree. 2 Bl. Com. 507. 4 East 441, Mountford v. Gibson. And upon a similar plea he may prove that, before action brought, he had delivered the goods or paid the money of the deceased, to the rightful administrator; but he cannot discharge himself by such payment or delivery after the commencement of the suit. 7 Mod. 31, Anon. 1 Salk. 313, Anon. Cro. Eliz. 565, Bradbury v. Reynel. 2 T. R. 97, Padget v. Priest. 3 T. R. 587, Curtis v. Vernon, and the case in the text. It was formerly held that if an executor de son tort took letters of administration before action brought, yet a creditor might charge him either as executor or administrator, at his election; because having once made himself liable to the action as executor de son tort, he should never after discharge himself by a matter ex post facto. Cro. Eliz. 102, Stubbs v. Rightwise. -565, Bradbury v. Reynel. -810, Bethel v. Stanhope. But these cases seem to have been overruled by more recent decisions; and it is now settled that if an executor de son tort obtains administration, it legalizes all prior tortious acts of intermeddling. He is therefore, in such case permitted to retain against another creditor who sues him, for a debt due to himself, even though administration was obtained pendente lite. Thus where the defendant was sued as executor and pleaded a judgment obtained by himself against the deceased in his lifetime, and the plaintiff replied that he was executor de son tort only; the defendant rejoined, by way of plea puis darrein continuance, that he had since obtained letters of administration, and it was held good on demurrer. 2 Stra. 1186, Vaughan v. Brown. See also 3 T. R. 587, Curtis v. Vernon. So in New York, where the defendant was sued as executor and pleaded in abatement that administration was granted to him before the commencement of the suit, and traversed being executor, and the plaintiff replied that the defendant became executor de son tort by intermeddling, &c. previous to the granting of administration, it was held on demurrer that the replication was bad, and the writ was abated. 8 Johns. 126, Rattoon v. Overacker. [49 b] [49 c] So in Massachusetts, in an action of assumpsit against the defendant as executrix, she pleaded plene administravit according to the statute for the settlement, &c. of insolvent estates. The plaintiff replied that the defendant was executrix de son tort, and took administration after the commencement of the action, and upon demurrer the replication was adjudged bad. 15 Mass. 325 in note, Andrews v. Gallison. And even upon a sci. fac. to have execution of a judgment recovered against an executor de son tort, it is held to be a good bar, that the defendant obtained administration before the suing out of the sci. fac.—that the estate is insolvent,-and that distribution has been decreed by the Probate Court. 15 Mass. 322, Shillaber v. Wyman. 2d. The liability of an executor de son tort to the rightful administrator. The executor de son tort is liable to the rightful administrator for the full value of all the effects of the deceased which have come to his hands, or with which he has intermeddled. In an action against him therefore, by the rightful administrator, he cannot plead a retainer for a debt due to himself, or payment of debts to the value, or that he has given the effects to a creditor in satisfaction of the intestate's debts; because no man ought to intrude himself into the office of another, and if it were permitted to every man to be his own carver in such cases, it would occasion endless strife and confusion, and would in effect be allowing him to take advantage of his own wrong. He may, however, under the general issue, prove payments of the deceased's debts in due course of administration, but not a retainer for his own debt, by way of mitigation of damages. Bac. Abr. tit. Executors and Administrators, B. 3. 2. Bul. N. P. 48. 2 T. R. 100, Padget v. Priest. 4 East 441, Mountford v. Gibson; and such payments will be allowed unless perhaps upon a deficiency of assets, whereby the rightful administrator may be prevented from satisfying his own debt. 2 Bla. Com. 508. But where a man took out letters of administration under a will by which he was appointed executor; and after notice of a subsequent will sold the goods of the testator; it was held that the rightful executor, in an action of trover, was entitled to recover the full value of the goods sold, and that the defendant was not entitled to show, in mitigation of damages, that he had administered the assets to that amount. 5 Barn. & Ald. 744, Woolley v. Clark. As creditors are entitled by law to enforce the payment of their debts against an executor de son tort; and as any intermeddling with the intestate's effects is sufficient to constitute a person such executor, it follows as a general rule that payments made by an executor de son tort are valid, and that the lawful administrator cannot recover back from such creditor the money or effects so paid. If an executor de son tort does lawful acts with the goods, as the paying of debts in their degrees, it will alter the property against the lawful administrator. Per Holt C. J. 12 Mod. 471. But this is to be understood only of payments made in due course of administration, and not of a single act of a stranger in taking the goods of the intestate and delivering them to a creditor for the sole purpose of satisfying the debt. Though such single act might make such stranger liable to other creditors as executor de son tort, yet the property so delivered would not be thereby changed as against the rightful administrator. Thus a creditor of an intestate who received the intestate's goods after his death from his widow, in payment of his debt, cannot protect his possession, in an action of trover by the lawful administrator, upon the ground that the delivery was made by one who had, by such intermeddling, made herself executrix de son tort; no fact appearing to show that she acted in this respect in the character of an executrix, except the single act of wrong complained of in which the defendant participated. 4 East 441, Mountford v. Gibson, |