66 1792. VERNON against CURTIS in Error. "by divine Providence, Archbishop of Canterbury, Primate of "all England, and Metropolitan, to whom the granting of that "administration of right belonged, was in due form of law "committed to Susannah Palmer, widow, and relict of the said "John Palmer, to wit, at London aforesaid, in the parish and ward "aforesaid, and the said Susannah being so constituted admini"stratrix, as aforesaid, he the said William Vernon afterwards, "and before this same Saturday next after one month from the [ 19 ] "day of Easter, to wit, on the 15th day of May in the year last "aforesaid, at London aforesaid, in the parish and ward afore"said, delivered and paid over, and caused to be delivered and paid "over, to her the said Susannah as administratrix aforesaid, all "and singular the goods and chattels, which were of the said John, "which had ever come to the hands of him the said William Ver66 non, and the said William Vernon says, that he hath not, nor on the day of exhibiting the bill of them the said Timothy "and William Curtis, had, nor at any other time since, hath "had any goods or chattels of the said John at the time of his "death, except the said goods and chattels so delivered and "paid over to the said Susannah as administratrix as aforesaid, "and this he is ready to verify, wherefore he prays judgment "if the said Timothy and William Curtis ought further to main"tain their aforesaid action thereof against him, &c. And the "said William produces here in court the letters of adminis"tration of the said archbishop, so by him granted as afore"said, which testify the granting thereof in form aforesaid, the "date whereof is the same day and year in that behalf afore"said. And for further plea in this behalf, by like leave of the "Court here for that purpose first had and obtained, according "to the form of the statute in such case made and provided, "the said William Vernon says, that the said Timothy and Wil"liam Curtis ought not further to maintain their aforesaid ac❝tion thereof against him, &c. because he says, that the said “John Palmer died intestate, to wit, at London aforesaid, in the parish and ward aforesaid, and that he the said William Vernon never was executor of the last will and testament of the said “John, nor ever had or possessed any goods or chattels which 66 were of the said John, save as executor of his own wrong, and "that after the death of the said John, and before this same "Saturday next after one month from the day of Easter, to wit, "on the 14th day of May, in the year of our Lord 1789, admi"nistration 66 1792. VERNON against CURTIS in Error. "nistration of all and singular the goods, chattels and credits, "which were of the said John Palmer deceased, who died in 66 testate, was by the right reverend father in God John by di"vine Providence Archbishop of Canterbury, Primate of all "England, and Metropolitan, to whom the granting of that "administration of right belonged, in due form of law com"mitted to Susannah Palmer widow and relict of the said John "Palmer, to wit, at London aforesaid, in the parish and ward [20]" aforesaid; and the said William Vernon further says, that he "the said William Vernon in the life-time of the said John "Palmer, to wit, in the Term of Saint Hilary, in the twenty"seventh year of the reign of our lord the now king, before "the king himself, at Westminster, impleaded the said John "Palmer in a plea of debt for 3000l. upon a certain writing "obligatory of the said John Palmer, sealed with his seal, "whereby he acknowledged himself to be held and firmly "bound to the said William Vernon in the said sum of 3000l. "to be paid to the said William Vernon, when he the said John "should be thereunto requested, in which said plea it was in "such manner proceeded that afterwards, to wit, in that very "same Hilary Term, in the twenty-seventh year aforesaid, the "said William by the consideration and judgment of the said "court, recovered against the said John Palmer in that plea, "the said 3000l. and also sixty-three shillings for his damages, "which he had sustained, as well by the occasion of the de"taining of the said debt, as for his costs and charges by him "about his suit in that behalf expended, as by the record and "proceedings thereof, remaining in the court of our said lord "the now king, before the king himself, at Westminster, more "fully and at large appears; which said judgment still remains "in full force, strength and effect, no ways vacated, set aside, "paid off, annulled, satisfied or discharged; and the said Wil"liam Vernon further says, that no goods or chattels which "were of the said John Palmer, at the time of his death, have "ever come to his hands except goods and chattels to the value of "7941. 13s. 9d.; which are not sufficient to satisfy and pay the "said debt and damages, and which are charged, bound and liable, "to the payment and satisfaction thereof, and which he retains to"wards the payment and satisfaction thereof, and to which the said "Susannah after the granting of the said administration, and before the same Saturday next after one month from the day of "Easter, « Easter, to wit, on the 15th day of May 1789, at London afore- The Court of King's Bench having given judgment for the Plaintiffs (3 Term Rep. B. R. 587.), a writ of error was brought and the assignment of errors was 1792. VERNON against CURTIS in Error. "That in the record and proceedings aforesaid, as also in "the rendering of the judgment aforesaid, there is manifest "error in this, because by the record aforesaid it appears that "the judgment aforesaid was given for the said Timothy and [ 21 ] "William Curtis against him the said William Vernon, when by "the law of the land that judgment ought to have been given "for the said William Vernon against the said Timothy and "William Curtis. There is also error in this, that it appears "by the record aforesaid that judgment was given for the said Timothy and William Curtis against the said William Vernon, upon demurrer to the third plea of the said William Vernon "to the declaration of the said Timothy aand William Curtis, "whereas that judgment ought to have been given for the said "William Vernon against the said Timothy and William Curtis, "because the said plea and the matters therein contained are "sufficient in law to bar and preclude the said Timothy and "William Curtis from further maintaining their aforesaid ac"tion against the said William Vernon, the said several matters "therein alleged having occurred previous to the time of such plea being pleaded, as appears by the record of such plea; and "such plea being pleaded in bar of further maintaining such "action, therefore in that there is manifest error. There is " also error in this, that it appears by the record aforesaid, that judgment was given for the said Timothy and William Curtis "against him the said William Vernon upon demurrer to the "fourth plea of the said William Vernon to the declaration of "the said Timothy and William Curtis, whereas that judgment, "by the law of the land, ought to have been given for the said "William Vernon against the said Timothy and William, because "the said plea and the matters therein contained are sufficient "in law to bar and preclude the said Timothy and William "Curtis from further maintaining their said action against the "said William Vernon, the several matters therein alleged hav"ing occurred previous to the time of such plea being pleaded, ፡፡ as 1792. VERNON against CURTIS in Error. as appears by the record of such plea, and such plea being pleaded in bar of further maintaining such action; there"fore in that there is manifest error. There is error also in "this, that judgment was given upon the said third plea for "the said Timothy and William Curtis against the said William "Vernon as executor of his own wrong, although it appears that before such plea pleaded he delivered over all the assets of John "Palmer which had ever come to his hands, to the rightful admi"nistratrix of the said John Palmer, and that as soon as ad"ministration was granted to her; therefore in that there is "manifest error. There is also error in this, that judgment "was given upon the said fourth plea for the said Timothy and [ 22 ] "William Curtis against the said William Vernon, as executor "of his own wrong, to recover a simple contract debt of the said "John Palmer, although it appears that the rightful administra"trix of John Palmer had before plea pleaded, and as soon as ad"ministration was granted to her, assented to the said William "Vernon's retaining assets in respect whereof the action was "brought, towards satisfaction of a debt of a superior nature, to "wit, a debt on a judgment recovered in his Majesty's Court of "King's Bench, by the said William Vernon against the said "John Palmer, and although by the law of the land a rightful "administratrix is bound to apply the assets of an intestate in "discharge of debts of a superior nature before debts of an in"ferior nature; therefore in that there is manifest error," &c. This was twice argued in the Exchequer Chamber, the first time in Easter Term last by Wood for the Plaintiff in error, and Bower for the Defendants; the second in Trinity Term, by Gibbs for the Plaintiff, and Bower for the Defendants. The substance of the arguments on behalf of the Plaintiff in error was as follows: At the death of the testator, the Plaintiff in error being a judgment creditor, but not intitled to administration, possesses himself of part of the effects, and the Defendants being simple contract creditors, bring their action against him as executor de son tort, before any administration is taken out. On this state of the case it is obvious that if the Defendants prevail they will gain an unlawful advantage, but if they do not, the Plaintiff will have no advantage to which the law does not entitle him; it being perfectly clear that a creditor by judgment has a legal right to the payment of his debt, in preference to a creditor by 1792. VERNON against CURTIS in Error. simple contract. Although it seems to be taken for granted, that an executor de son tort cannot retain for his own debt, yet there is no express authority for this, except a position in 2 Bac. Abr. 390. which is not supported by the cases to which it refers. The principal authority on which that position seems to be founded, is Coulter's case, 5 Co. 30 a. but that case is not applicable to the present. There the Court held, "that an "executor of his own wrong should not retain, for from thence "would ensue great inconvenience and confusion, for every "creditor (and chiefly when the goods of the deceased are not "sufficient to satisfy all the creditors) would contend to make "himself executor of his own wrong, to the intent to satisfy "himself by retainer, by which others would be barred. And "it is not reasonable that one should take advantage of his "own wrong; and if the law should give him such power, the [ 23 ] "law would be the cause and occasion of wrong, and of the "wrongful taking of the goods of the deceased," &c. But in that case there was no question made as to the priority of debts: and though it may be proper that an executor of his own wrong shall not take advantage of that wrong, and give himself a preference which the law would not give him, yet it does not follow, that the Court ought to take away from him the preference which the law gives to creditors of a superior over those of an inferior degree. As an executor is bound to satisfy judgment before simple contract debts, why should he not retain his own judgment debt, in preference to a debt by simple contract? But in fact it appears from examining the Roll, that no judgment was given in Coulter's case (which is misreported Cro. Eliz. 630.), but that a discontinuance was entered. There is therefore no decided authority to shew that an executor de son tort cannot retain for his own debt of a superior nature, against a creditor by simple contract. In 12 Mod. 471. Lord Holt 66 says, an executor de son tort, who is but an executor de "facto, if he does lawful acts with the goods, as paying of "debts in their degrees, it shall alter the property against the "lawful executor; as if he pay just and honest debts, the " rightful executor shall not avoid that payment; and yet it is "an act done by one that has no right. It is true he is not "quit against the rightful executor, but he shall maintain "trover against him; but what shall he recover in damages? "Only for so much as he has misapplied; and all that he has "well |