#### Ebenezer Shillaber *versus*Nehemiah Wyman.

To a *scire facias on*a judgment against an executor *de son tort,*it is a good plea m bar of execution, that the defendant has taken letters of administration, tho the estate of the deceased is insolvent, and that a decree of distribution has been passed in the Probate Court.

*293The plaintiff having, November term, 1816, of this Court, recov ered judgment against the defendant as executor of *Francis Wyman,*deceased, brings this writ of *scire facias, to*have execution of the said judgment against the defendant *de bonis propriis,*upon a suggestion of waste, &c.

The defendant pleads, in bar of execution, that, before the suing out of the *scire facias, viz.,*on, &c., he was duly appointed administrator of the goods and estate of the said *Francis;*that the said estate was insolvent; and sets forth the proceedings thereupon, to the decree of insolvency and distribution; averring that he has conformed to the directions of the statute, and has fully administered the estate of the deceased, so far as the same had come to his hands or knowledge ; and traversing the waste.

The plaintiff replies that the said *Nehemiah,*as executor of his own wrong,after the death of the said *Francis,**and before the commencement of the original action, *viz.,*on, &c., by fraud and covin intermeddled with, carried out of the said county of *Essex,*embezzled, and converted to his own use, the goods and chattels of the said *Francis,*to the value of the sums for which the plaintiff’s-judgment was rendered, and that the said original action against the defendant, as executor, was commenced long before he was appointed administrator, &c., *viz.,*on, *&c.*

To this replication the defendant demurs, and the plaintiff joins in demurrer.

*Pickering,*for the defendant.

Two questions arise on the pleadings in this action. 1. Whether the defendant’s plea is a good bar to the plaintiffs demand. 2. Whether the defendant can, at this time, avail himself of it.

If the defendant had been, from the beginning, a rightful administrator, there can be no doubt the bar would be good, on the authority of the decision in the case of *Coleman*vs. *Hall, Adm.*(1) And it is equally well settled that, when an executor *de son tort*takes out administration, it legalizes all prior tortious acts of inter-meddling. (2)

These positions being established, the only remaining question must be, whether the defendant can now avail himself of this plea — the original action having been commenced before administration was taken out, when, it may be said, rights had vested in the plaintiff which nothing *ex post facto*shall devest.

*294On this point it is clear, from the books, that the time when the action is commenced does not affect the validity of the plea. It has no other effect than this, that, if the action is commenced before administration granted, the plaintiff’s writ shall not be abated by the subsequent administration. (3)

Then, by our law, the executor stands exactly as he would il originally a rightful administrator, and a suit had been commenced before administration granted. He cannot defend against a lawful demand of a creditor ; he cannot discharge the judgment, because he does not know * “ the condition and circum stances ” of the estate, or whether there will be assets. Unless, therefore, he can avail himself of this plea in bar, he is, as the Court observe in the case of *Coleman,*vs. *Hall,*in a situation where the law would never intend that any man should be placed.

The allegation, in the plaintiff’s replication of fraudulent and covinous intermeddling, and conversion by the defendant to his own use, is of no importance ; for every intermeddling, legally speaking, is such. The same answer may be given to the averment of the defendant’s carrying the goods out of the county ; for they were not thereby carried out of the jurisdiction of the Probate Court.

*Hawes,*for the plaintiff.

The judgment sought to be enforced, in this suit, is against the defendant, as executor. He cannot be received to plead *plene administravit,*as administrator. He could not have this privilege in *England.;*and our statute of insolvency was not intended for the protection or benefit of executors *de son tort.*In the case of *Coleman*vs. *Hall,*the original action was against a rightful administrator. In the case from 8 *Johns.,*it does not appear that the administration was taken out. after the commencement of the action. The position that an administration legalizes, or purges, all the acts of an executor *de son tort,*must be admitted with great limitations, and ought not to be extended beyond the facts in each case. None of the cases cited for the defendant come up to the case now before the Court; and, indeed, it is a singular principle that the defendant’s own act should defeat the plaintiff’s vested right of action.

(1)

19 *Mass. Rep.*570.

(2)

 2 *Saund.*265, note (2) by Williams, and the cases there cited.—2 Strange, 1106, *Vaughan*vs. *Brown.*— *And.*328, S. C. — 2 *Vent.*180, *Pyne*vs. *Wooland.*— Styles, 337, *Williamson*vs. Nonwich.— See, also, 8 *Johns.*126, *Rattoon & Al.*vs. Overacker, *Exr.*— 3 *D. & E.*587, *Curtis*vs. *Vernon.*

(3)

*Bac. Abr.*title *Exrs. & Admrs.*b. 3.

Parker, C. J.

In the case of *Coleman*vs. *Hall, Adm.,*which was a *scire facias*to obtain execution of a judgment before rendered, it was decided that a special *plena administravit,*under the insolvent law, was a good plea in bar to the *scire facias.*And, in a case in *Cumberland,*which was argued at the last term at Portland, and continued for advisement, we have come to the opinion that a similar plea was a good bar to an action against an executrix *295*de son** *tort,*although administration was taken out after the commencement of the plaintiff’s action, according to the authorities cited for the defendant in the case at bar —■ showing that an executor *de son tort*may purge the wrong by a rightful administration under letters lawfully granted. † (a)

Between the case referred to, and that now before us, there is no distinction, except that this is a *scire facias** upon a judgment, and the other was an original action. In principle, however, there is no difference. The authorities, which show that a wrongful intermeddling may be cured by a subsequent administration, do not limit the principle, but leave it to be applied in all cases where a suit is brought against an executor *de son tort.*And no injustice is done ; for the plaintiff, upon notice of the administration and of the commission of insolvency, might have filed his claim, and obtained his dividend, with the other creditors ; and the administration bond is a security for all *296the estate of the intestate, whether it came into the hands of the administrator before, or after, the letters of administration were granted. The plea in bar is, therefore, a sufficient defence to the action; and the replication, neither denying, nor confessing and avoiding, any material allegation of the bar, is adjudged bad. (a)

† (a)

The chief justice refers here to the case of *Andrew*vs. Gallison, *Exx.*The action was *assumpsit*against the defendant, as she was executrix of *Sytvanus Galli son;*to which she pleaded *plene*administravit, according to the statute providing for the settlement ana distribution of insolvent estates. The plaintiff jeplied, that the defendant was executrix in her own wrong; and that, after the commencement of the action, she took out letters of administration, and all her proceedings relative to the estate were under that administration. The defendant demurred to this replication, and the plaintiff joined in demurrer.

The cause was shortly argued by *Hopkins*for the plaintiff, and *Longfellow*for the defendant.

Having been favored by the chief justice with the opinion of the Court, as it has been formed at a conference of all the justices, it is here inserted, in anticipation of the decisions of the next term in *Cumberland.*

*Curia.*There being a general demurrer, the question in this case is whether, by regular proceedings under the letters of administration, the defendant has purged the original wrong, so as to be discharged from the plaintiff’s claim. And we think she is thus discharged. So was the opinion of the Court in the case of *Vaughan*vs. *Brown;*and the same doctrine is admitted in the case of *Curtis*vs. Vernon, as we understand it; it seeming to be agreed, in that case, that an executor *de son tort*may legalize his acts which were wrong by taking out letters of administration. If his acts are legalized, they are to be viewed in the same light as if he had been rightful adminis tratbr when the goods came into his hands.

In the case of *Curtis vs.*Vernon, it was held that an executor *de son*tort, to dis charge himself from an action, must have delivered over the goods to the rightful administrator before action commenced. But there seems to be a distinction admitted, where another person is appointed administrator, and where administration is committed to the executor *de son tort.*In the latter case only, the tortious acts are said to be legalized.

In note (2) in 2 *Saund.*265, it is laid down by Sergeant *Williams*precisely, that an administration granted, even *pendente lite,*to an executor *de son*tort, legalizes his tortious acts, and gives him a right to retain for his own debt, according to the gen eral rights of executors and administrators at the common lew.

It is undoubtedly hard that an action, rightfully commenced, should be defeated by matter *ex post facto ;*but that is the case whenever pleas *puis darrein continuance*are admitted; and it is one of the chances which plaintiffs must submit to when tne*y see fit to commence their suits. *Replication adjudged bad. (a)*Vide *Williams on Exrs.*143, note *z.*— *Laury*vs. Alshed, 2 *Brownl.*185. — Godolph. pt. 2, c. 8, § 2. — *Com. Dig. Adm.*61.

(a)

*Coffin*vs. Cottle, Suffolk, March T. 1830 *Mass.*— *Williams on Exrs.*112 —145.