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. Although an executor de son tort cannot avail himself of his own wrongful act in taking possession of the goods of the deceased, in order to retain a debt for his own benefit, yet he may plead (d) in answer to the claim of a simple contract creditor, that after action brought, he had disposed of the assets in that course of administration which the law allows, viz. by discharging a debt of higher degree, as a specialty debt; for if, at any time before plea pleaded, an executor comes to the knowledge of such a debt, he is bound to pay it before a simple contract debt, whether he be a rightful or wrongful executor.

Evidence. In all questions respecting personalty, the probate or letters of administration, with the will annexed, are the only legal evidence of the will (e). Trespass for taking goods (f). 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 then_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 (g). Upon issue joined on a plea by executors of plene administravit, the amount of the stamps upon the probate is admissible in evidence (h); but semb. that this is not even primâ facie evidence of the amount of assets received. Probate is not admissible to prove declarations of the testator as reputation in questions of pedigree (i). After notice to defendant's executors to produce probate, and refusal, it has been holden (k), that an instrument, produced by the officer of the Ecclesiastical Court, purporting to be the will of the defendant's testator, and indorsed by the officer as

(d) Oxenham v. Clapp, 2 B. & Ad. 309. (e) But see Doe d. Bassett v. Mew, 7 A. & E. 240, ante, p. 744.

(f) Coe v. Westernham, Norfolk Summ. Ass. 1725; Serjt. Leeds' MSS.; Pinney v. Pinney, 8 B. & C. 335, S. P.

(g) Per Cur. in Shepherd v. Shorthose, Str. 413.

(h) Mann v. Lang, 3 A. & E. 699, overruling Curtis v. Hunt, 1 C. & P. 180; and Foster v. Blakelock, 5 B. & C. 328.

(i) Doe d. Wild v. Ormerod, 1 Mo. & Rob. 466, Alderson, J., on the authority of Bull. N. P. 246.

(k) Gorton v. Dyson, 1 Broderip & Bingh. 219.

being the instrument whereof probate had been granted to the defendants, and that they had sworn to the value of the effects, is admissible in evidence in an action against defendants for money had and received by their testator. An examined copy of the act book in the registry of the Prerogative Court of Canterbury, stating that administration was granted to the defendant of her husband's goods and chattels at such a time, is proof (1) of her being such administratrix in an action against her as such, without giving her notice to produce the letters of administration. Where a bill of exchange was indorsed, generally, but delivered to A., as administratrix of B., for a debt due to the intestate, and A. died intestate after the bill became due, and before it was paid: it was holden (m), that the administrators de bonis non of B. might sue upon the bill; and that their title was sufficiently proved by the letters of administration de bonis non, without producing those granted to A., the administratrix. A retainer may be given in evidence on plene administravit (n); but debts of a higher nature subsisting cannot (o). In an action against executors for a debt of testator, a person entitled to an annuity under the will, was holden not to be disqualified by interest from giving evidence for the defendants (p). But where the action was by a bond creditor of the testator against the devisee of his real estate, out of which an annuity was payable, the defence being, that the testator's signature was a forgery; it was holden (q), that the annuitant was not a competent witness for defendant; for he was directly interested, the object of the evidence being to prevent the plaintiff from recovering against the very estate devised for payment of the annuity. By stat. 1 Vict. c. 26, s. 17, no person shall, on account of his being an executor of a will, be incompetent to be admitted a witness to prove its execution, or validity or invalidity. Upon plene administravit et issint riens inter mains (r), if it 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 (s), the plaintiff must prove his debt, otherwise he shall recover but one penny damages, though there be assets; for the plea admits the debt, but not the

amount.

In all actions by and against executors or administrators, the character in which the plaintiff or defendant is stated on the record to sue or be sued, shall not in any case be considered as in issue (t), unless specially denied.

(1) Davis v. Williams, 13 East, 232.
(m) Catherwood v. Chabaud, 1 B. & C.

150.

(n) Plumer v. Marchant, 3 Burr. 1380. (0) Bull. N. P. 141.

(p) Nowell v. Davies, 5 B. & Ad. 368; but see the remarks of Parke, B., on this

case, in 7 M. & W. 240.

(q) Bloor v. Davies, 7 M. & W. 235. (r) 1 Inst. 283, a.

(8) Per Holt, C. J., Shelley's case, Salk. 296.

(t) R. G. H. T. 4 Will. IV. 21.

Judgment. On a plea of plene administravit generally, by an executor (u), the plaintiff may immediately take judgment of assets quando acciderint (38). 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 received (x). 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 (y). In like manner, 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 testatoris (z). So in debt against an executor on a bond made by testator (a), 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. 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 (b) (39). In debt against two executors (c), if they plead severally by several attorneys, "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.

Costs. 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 (d). Where an executrix pleaded first, non assumpsit; 2ndly, ne unques executrix; and 3dly, plene administravit; and issues on the first pleas were found for the plaintiff, and on the last for the defendant; it was holden (e), that the last plea being a complete answer to the action, the defendant was entitled to the general costs of the trial. Plaintiff sued as administratrix, upon promises to the intestate, and upon an account stated with her as administratrix of monies due to her in that character, and a promise to pay her it was holden (f), that it thereby appeared that

(u) Noell v. Nelson, 2 Saund. 226. (x) Taylor v. Hollman, Bull. N. P. 169. (y) Collins v. Thoroughgood, Hob. 188. (z) Castilion v. Executor of Smith, Hob. 283.

(a) Bro. Abr. Exor. pl. 109. (b) Lee v. Ridford, adjudged on error, in Exch. Ch. Roll. Rep. 58.

(c) Bellew v. Jackleden, on error in

Exch. Ch., 1 Roll. Abr. 929, (B.) pl. 5.
See also Parsons v. Hancock, 1 M. &
Malk. 330.

(d) Grimstead v. Shirley, 2 Taunt. 116; Jones v. Jones, 1 Bingh. 249.

(e) Edwards v. Bethel, 1 B. & A. 254. See also Ragg v. Wells, 8 Taunt. 129.

(f) Dowbiggin v. Harrison, 9 B. & C. 666; Jobson v. Forster, 1 B. & Ad. 6.

(38) See the form of this judgment in 2 Saund. 216, 17.

(39) But see Harrison v. Beccles, cor. Lord Mansfield, C. J., London Sittings, 1769, cited in Erving v. Peters, 3 T. R. 688.

the contract was one made between the plaintiff and another person within the words of stat. 28 Hen. VIII. c. 15, and, therefore, that, after a nonsuit, the defendant was entitled to costs. Declaration by executor stated, that the defendant being indebted to the testator at the time of his death, in consideration thereof, promised the plaintiff as executor to pay him the amount. The statute of limitations was pleaded; it was holden (g), that the plaintiff being nonsuited was entitled to costs, although he did not declare upon an account stated. And now, by stat. 3 & 4 Will. IV. c. 42, s. 31, in every action brought by any executor or administrator in right of the testator or intestate, such executor or administrator shall, unless the court in which such action is brought, or a judge of any of the said superior courts, shall otherwise order, be liable to pay costs to the defendant, in case of being nonsuited or a verdict passing against the plaintiff. An executor suing on a count upon promises to himself as executor, stating a consideration, partly of money due to testator in his life-time, and partly of an account stated with himself as executor, is liable to costs (h) if nonsuited, and cannot be relieved by the court or a judge under this statute. In order to induce the court to exempt an executor who has failed, from costs (i), it is not sufficient that the action has been brought bonâ fide, under counsel's advice, and that it has been defeated on a difficult point of law, unless there be improper conduct on the part of the defendant. Unnecessary prolixity in the pleadings is not such conduct: nor omitting to give the plaintiff information, which might have prevented his proceeding with the action, if the plaintiff did not apply for the information.

(g) Slater v. Lawson, 1 B. & Ad. 893. (h) Chesterman v. Lamb, 2 A. & E. 129.

(i) Farley v. Briant, 3 A. & E. 839, recognizing Wilkinson v. Edwards, 1

Bingh. N. C. 301; Southgate v. Crowley, ib. 518; Engler v. Twisden, 2 Bingh. N. C. 263. See also Godson v. Freeman, 2 Cr. M. & R. 585.

CHAPTER XX.

FACTOR.

Of the Nature of the Employment of a Factor, p. 810; Power and Authority, p. 811; Lien, p. 817; Liability of Principal, p. 820; Stat. 4 Geo. IV. c. 83, 6 Geo. IV. c. 94, p. 820; Evidence, p. 825.

OF the Nature of the Employment of a Factor.-A Factor 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

(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 persons 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 usual commission, when he sells his goods on credit, becomes bound to warrant the solvency of the purchasers." Arg. Mackenzie v. Scott, 6 Bro. P. C. 287, Tomlin's ed. In Grove v. Dubois, 1 T. R. 112, the effect of a commission del credere was discussed in the Court of King's Bench, and that court decided that it was not merely a conditional undertaking and gua