
    Rattoon and another against Overacker, Executor of Craig.
    To a declaration executor of B* plladed^n^ahatemcnt that Is. died intestate, and letters of administration were wards granted to the defend-
    plaintiff prevíous ^to granting the nistration, the defendant made himself executor <fe son tort,
    
    thc^nrepTicJtion S heándt0the dechiration was ing out letters tion made legal were brfore'wrtious. If a person who is sued as executor de son tort, takes out administration pending the suit, though it will not defeat the suit, which was well commenced, yet it will legalize all intermediate acts ab initio, and justify a retainer.
    THIS was an action of assumpsit. The declaration was on a promissory note made by Moses Craig, deceased, anc* f°r goods sold and delivered, and for the use and occupation of land.
    The defendant pleaded in abatement of the declarabecause Craig died intestate, on the 21st January, r . . . 1 809, and alter his death, to wit, on the 24th Novemher, 1809, administration, &c. was granted to the deUndant and his wife, without this, that the defendant is or ever was executor, &c. and .that he is ready to verify &c. wherefore he prays iudgment of the said bill, and J that the same may be quashed, &c.
    pja}ntj|ys fepliecj? that previous to granting the letters of administration, &c. the defendant became executor’ °f his own wrong, &c,; that is, the defendant, previous to the granting of administration. &c. took possession of and converted to his own use, the goods, chattels, and credits of the said Moses Craig, and sold part of them, and discharged debts, thereby making himself executor, &c. of his own wrong; and this they , , ’ - 5 are ready to verity, etc. *
    To this replication there was a special demurrer. The causes of demurrer were, that the replication was double; that it attempted to put at issue several and distinct matters; and was multifarious, &c.
   Per Curiam.

The plea is good, and the replication ill, because the taking out letters of administration legalized those acts which were tortious at the time. In Vaughan v. Browne, (Str. 1106. and 328.) the court of K. B. laid down this doctrine, that though a person who is sued, as executor de son tort, shall not defeat the suit, by taking out letters of administration pending the suit, because the suit was well commenced; yet that such an administration will legitimate all intermediate acts ab initio, and justify a retainer. This case is very fully reported in And. 328.; and Lord Kenyon, in Curtis v. Vernon, (3 Term Rep. 587.) cites this decision as good law. It must, therefore, be considered as overruling the more ancient decisions, which declared, that though an executor de son tort did afterwards take out letters of administration, yet it was still in the election of the creditor to charge him as executor or administrator. The case in Strange and Andrews cannot be reconciled,upon principle,with the former doctrine; and as that case was three times argued, and very solemnly decided, upon demurrer, it ought to prevail. It is the more reasonable rule; for, as the court observed, “ It would be very hard to lay it down, that if a man who sues for administration is opposed, and the cause runs out into any length, that the acting pendentelite should be construed such a wrongful executorship, as can never be purged so as to give him the benefit of retaining.” And if the letters of administration will purge the tort, so as to justify a retainer, there is ns reason why it should not cure the act altogether, by a retrospective effect. It does no possible injury to the crcditor. The declaration must, therefore, be quashed.  