cessary that the letters of administration should be set forth," because the plaintiff, by his declaration, admits him to be lawful administrator". An executor de son tort cannot retain for his own debt, although of a superior nature; neither will the consent of the rightful administrator to the retainer given, after action brought by creditor, alter the case; nor can such executor avail himself of a delivery over of the effects of the deceased to the rightful administrator after action brought, and before plea pleaded, so as to defeat the action of a creditor (47). In debt upon bond against the defendant as executor, he pleaded a judgment which he had recovered against the deceased, and so justified by way of retainer. Replication, u Picard v. Brown, 6 T. R. 550. x Vernon v. Curtis, 2 H. Bl. 19. 3 T.. R. 587. y Vaughan v. Brown, Str. 1106. Andr. 328. 7 Mod. 274. Leach's ed. and MSS. (47) "When trover is brought by a rightful executor or administrator against an executor de son tort, he cannot plead payment of debts, &c. to the value, or that he has given the goods, &c. in satisfaction of the debts, because no person ought to obtrude hiniself upon the office of another; nevertheless, upon the general issue pleaded, such payments shall be recouped in damages." Per Holt C. J. Carth. 104. So per Buller J. 2 T. R. 100. "If an action be brought by a rightful administrator against an executor de son tort, whatever may have been disposed of in a course of administration, as by paying debts, &c. shall be allowed him in damages." "But in an action by a creditor against an executor de son tori, the defendant may plead plene administravit, and give in evidence the payment of just debts; but he cannot retain a just debt to himself." Per Holt C. J. Carth. 104. It is laid down in Bull. N. P. 48. "that if, in trover, by a rightful administrator, it should appear, that the payments made by the executor de son tort amount to the full value of the assets, the plaintiff shall be nonsuited; but in trespass it shall go in mitigation of damages only." This position is founded, as it seems, on an expression in 12 Mod. 472. ascribed to Holt C. J.; but as Lord Ellenborough, in Mountford v. Gibson, 4 East, 443., justly remarked, it is directly contrary to the opinion of Holt C. J. in Whitehall v. Squire, Carth. 104. The acknowledged accuracy of Carthew's Reports may induce a suspicion that the reporter in 12 Mod. was mistaken; more especially as in p. 472. of that report, Holt is made to contradict what he had asserted in p. 471. Indeed there does not appear any reasonable ground of distinction between the actions of trespass and trover, as to this point. that the defendant was executor de son tort. Rejoinder, that after the last continuance, the defendant had obtained letters of administration. On demurrer, it was objected, that the rejoinder was a departure from the plea. But the court held that it was well enough; because the plea did not expressly admit, that defendant had proved the will, but only admitted the defendant's executorship according to the declaration. By the replication it appeared, that the defendant was not charged as a rightful but as wrongful executor, which could not appear on the declaration, the method of declaring against both of them being the same. And the rejoinder set forth a matter, which made the acting as unlawful executor justifiable; for the subsequent administration related to the death of the intestate, and purged the precedent wrongful executorship, so as to give the defendant the benefit of retaining. Evidence. In all questions respecting personalty the probate or letters of administration, with the will annexed, are the only legal evidence of the will. Trespass for taking goods. On not guilty, the defendant admitted that the goods had been in the possession of the plaintiff, but insisted that he, the defendant, had a property in them as executor of I. S. and produced the original will, by which he was appointed executor. But, per Raymond C. J. "I cannot allow the original will to be evidence to prove a property in an executor; the probate must be produced; for, perhaps, the ecclesiastical court will not allow this to be the testator's will. Besides, until probate, a man dies intestate; and, if the executor dies before probate, his executor shall not be executor to the first testator." Where a probate of a will is lost, the ecclesiastical court never grants a second probate, but they will exemplify the first, and such exemplifications are admissible in evidence". A retainer may be given in evidence on plene administravit; but debts of a higher nature subsisting cannot. In an action at the suit of an executor, if the estate of the testator is insolvent, a person who has an unsatisfied demand upon such estate, is not a competent witness for the plaintiff. Upon plene administravit et issint riens inter mains, if it z Coe v. Westernham, Norfolk Summ. Ass. 1725. Serjt. Leeds' MS. a Per Cur. in Shepherd v. Shorthose, Str. 413. b Plumer v. Marchant, 3 Burr. 1380. c Bull. N. P. 141. d Craig v. Cundell, 1 Camp, N. P. C. 381. e 1 Inst. 283. a. be proved, that executor hath goods in his hands, which were the testator's, he may give in evidence, that he hath paid to that value of his own money, and need not plead it specially. In case against executor, upon plene administravit, the plaintiff must prove his debt, otherwise he shall recover but id. damages, though there be assets; for the plea admits the debt, but not the amount. Judgment.-On a plea of plene administravit generally, by an executor, the plaintiff may immediately take judgment of assets quando acciderint (48). In debt or scire facias on this judgment, evidence of such assets only as have come to the executor's hands since the judgment will be received1. Judgment against an executor, in covenant broken by himself, shall be de bonis testatoris; for it is the testator's covenant which binds the executor as representing him; and therefore he must be sued by that name'. In like inanner upon an obligation made by testator for the performance of covenants, judgment in debt on the bond for a breach of covenant by executor, shall be de bonis testatorisk. So in debt against an executor on a bond made by testator', if the defendant plead non est factum, and it is found against him, judgment shall be for the debt and damages de bonis testatoris; for the executor cannot know whether it be the deed of the testator or not (49). In debt on bond against an executor, if the defendant plead" fully administered," and any assets are found in his hands, although they be not to the value of the debt, yet the plaintiff shall have judgment for his whole debt de bonis testatoris. In debt against two executors", if they plead severally by f Per Holt C. J. Shelley's case, Salk. 296. g Noell v. Nelson, 2 Saund. 226. h Taylor v. Holman, Bull. N. P. 169. i Collins v. Throughgood, Hob. 198. k Castilion v. Executor of Smith, Hob. 283. 1 Bro. Abr. Exor. pl. 109. (48) See the form of this judgment in 2 Saund. 216, 217. (49) But see Harrison v. Beccles, cor. Ld. Mansfield C. J. London sittings, 1769, cited in Erving v. Peters, 3 T. R. 688. several attornies" fully administered," and the jury find that the one has assets and the other has not, the judgment shall be against him only who is found to have assets, and the other shall go quit. Where the cause of action is such, that the executor might have declared in his own right, he is liable for costs, if he is nonsuited. o Grimstead v. Shirley, 2 Taunt. 116. СНАР. XX. FACTOR. Of the Nature of the Employment of a Factor-Power and Authority-Lien-Liability of Principal-Evidence. OF the Nature of the Employment of a Factor.-A factor or broker is an agent, who is commissioned by a merchant or other person to sell goods for him, and to receive the produce. Foreign factors are agents residing here, commissioned by merchants resident abroad, or the contrary. Home factors are agents resident in England, commissioned by merchants also resident in England. A factor is usually paid for his trouble, by a commission of so much per cent. on the goods sold. But sometimes he acts under a del credere commission (1), in which case, for an additional premium beyond the usual commission, he (1) "Del credere is an Italian mercantile phrase, which has the same signification as the Scotch word warrandice, or the English word guarantee. A factor who has general orders to dispose of goods for his principal to the best advantage, is bound to exercise that degree of diligence which a prudent man exercises in his own affairs, and consequently the factor is authorized to dispose of the goods according to the best terms which can be obtained at the time; and if it shall appear that he has done so, and that he has sold the goods to persous in reputed good circumstances at the time, and to whom at that time he would have given credit in his own affairs, he will not be liable to his principal, although some of these should fail; and for such trouble the factor is generally paid by a commission of so much per cent. upon the goods sold. According to the above practice, the principal runs all the risk, and the factor is sure of his commission whether the event be favourable or not. Many merchants do not choose to run this risk, and to trust so implicitly to the prudence and discretion of their factor; and, therefore, the agreement called del credere was invented, by which the factor, for an additional premium beyond the |