
    John Edwards against Thomas Ewing, executor of James Barr.
    In -suit brought against executors or administrators, an affidavit of defence is not necessary, by the practice of the court.
    On process returnable to this term, Mr. Ingersoll for the defendant, moved the court for their opinion, whether by the practice of the court the defendant was bound to file an affidavit of defence. It 'is admitted on all hands that such affidavit is not necessary in the cases of executors or administrators generally, because they cannot be supposed conusant of the facts out of which the defence arises. The court can only judge from the record.
    Mr. Rawle for the plaintiff.
    The present suit is brought against the defendant as executor de son tort; and there is a plain distinction between a rightful and wrongful executor. The latter cannot retain for his own debt in equal degree ; his plea is, that he is not executor. Though he may not know whether the debt is just or not, yet he must know, whether he has inter- # meddled *with the effects of the deceased, or not. The 23 -l declaration and plea will be filed in due time, and the defendant may then apply to the court for their opinion.
    Mr. Ingersoll replied,
    that under the circumstances which attend this case, the defendant could not swear absolutely that the goods he had intermeddled with, were his own property, though he certainly believed so. His own effects and those of the deceased, have become intermingled in a course of trade.
   By the CouRT.

The case comes before us prematurely. At present we are confined to the record, and cannot know that the defendant is sued as executor in his own wrong; and of course the general rule must prevail, which does not oblige executors or administrators to swear to defences, in suits brought against them in their representative capacity.  