case vaughan against brown to debt as executor if the defendant plead  judgement recover by way of retainer and no asset ultra and the plaintiff  reply executor de son tort the defendant may rejoin puis darrein continuance  that he be administratorSee Curtis v Vernon term Rep a SC stram SC and debt  bring as executor the defendant plead that he have recover two hundred and  forty pound upon a judgement in the common plea et nil asset ultra to which  the plaintiff reply that the defendant be executor de son tort and then the  defendant plead after the last continuance that he be administrator and to  this plea as administrator the plaintiff demurrer two question be now argue  modern er p first whether a executor may retain without prove himself lawful  executor and to prove that he can not be cite Mod wherein the plaintiff  declare against the defendant as executor who plead that he take upon he the  burden of modern the will and retain so much for a debt due to he and that he  have no other asset the plaintiff demurrer because it do not appear that the  defendant be not executor de son tort who can retain and judgement be give for  the plaintiff and coulter case   cro Elizabeth a that a executor de son tort  can retain second whether this second plea puis darrein continuance be not a  waiver of the first and to prove that it be a waiver cite cro James hob   Ent  raze Ent more salk for the defendant it be answer first that if a executor may  not retain without prove himself lawful executor yet a administrator may  retain roll Abr roll Abr Brownl bind v green second that the defendant plea of  administrator be not a waiver pierce v Paxton Mod ld ray holt b Williamson v  Norwich style c and agree in vent roll Abr roll Abr pl lee chief justice the  declaration in this case be against the defendant as executor general be plead  a judgement and thereupon insist upon a right of retainer and the plaintiff  replication be that the defendant be executor de son tort and so it stand upon  the plead the plaintiff replication have certain avoid the defendant defence  for a executor de son tort can retain then the defendant have plead as  administrator a plea puis darrein continuance and the administration take out  afterward will so far purge the original wrong as to enable he to retain a  just demand but if it be obtain after the action it can abate the plaintiff  suit where there be a original plea and a plea puis darrein continuance the  second waive the first except where there be a demurrer hob though contradict  in Salkeld but if this kind of contradictory plea be to be allow it will be  very much to the prejudice of the plaintiff page justice incline likewise to  allow the demurrer and cite forest v Ballard cro Elizabeth d probin justice  nun of the case cite come up to this as it stand upon the plead a plea after  the last continuance be a waiver but the return of this be because it consist  of different and contrary matter but it be not a waiver because it be a new  defence if it can be make consistent and if the plaintiff can rejoin to it the  first defence in this case be as executor the second as administrator and  whether these be inconsistent or not I be at present in doubt modern chapel  justice the difficulty with I be whether the plaintiff be not preclude by this  defence it be hard if a man have a true defence that be must not plead it and  though at the time of the first plea the defendant be executor de son tort yet  his administration be a matter of fact subsequent and they seem to I to be but  in the nature of one defence and it be a rightful one if it be well plead  which be the matter now in question and I be in some doubt whether the  defendant can have plead any otherwise or whether the plaintiff can take any  advantage of this to give any answer to it but I be not satisfy that the plead  be badSkin salk more pl a lee chief justice the damage to the plaintiff if be  can controvert the judgement be the material consideration but if it can be  show that the plaintiff can controvert this judgement and that he be not  preclude I think it be but let this be speak to again barrett for the  plaintiff in Hilary term b this be a action of debt upon bind for forty pound  to which the defendant have plead a judgement in the nature of a retainer the  plaintiff reply that he be executor of his own wrong the defendant after the  last continuance plead administration to which the plaintiff demurrer and  there be a joinder modern er p in demurrer the defendant can retain in this  case as tortuous executor roll Abr Yelv bolster case   c after the last  continuance nothing can be plead without leave Reg Pla hale analysis d new  matter can be plead after the last continuance bro Abr continuance e it be the  defendant laches not to have take out administration soon   f Laches shall  prejudice widow or infant bro Abr Laches pl   light b a g and this be the  defendant laches at the time of the first plea style h this last plea be a  waiver of the first because a man can have two bar at commonlaw bro Abr waiver  pl I hob be deny in palmer v BarkerSalk king these plead be inconsistent with  each other there be a distinction between executor and administratorsPlowd  Inst   l this last plea can stand with the first a person to enable himself to  retain ought to entitle himself to the executorship which the defendant have  not do upon these plead Mod vent roll Abr m if the first plea be waive the  second can stand and be in abatement so can be plead in bar as first salk Leon  n when a second plea contain matter not pursuant to the former and which do  not fortify it that be a departure Administration do not relate in all case    light vent salk oh modern hob be a strong case for the plaintiff the plaintiff  be hereby preclude of his defence this differ from the case in style because  there the plaintiff be not hinder from his defence as he be now and a demurrer  admit nothing but what be well plead and therefore judgement be pray for the  plaintiff Hasstell for the defendant though tortuous executor can retain yet  certain administrator may retain roll Abr Brownl a this be not a departure but  a strengthen our plea   light be the case of rejoin a feoff where the plea be  a lease and release they cite Atkinson v Rawson Mod Mod b that tortuous  executor can retain which be not our case the defendant have not plead  executorship but a judgement and this fortify his plea of a right to retain  Williamson v Norwich style c be the same case and express to this and  administration purees the wrong in this case and relate to the intestate death  roll Abr d the case of sir Thomas Cockin cro Elizabeth e be a plea after the  last continuance vent be not like this case bolter v Ireland in more coke and  cro Elizabeth S that tortuous executor can retain more and hob or do not  relate to this case the case of baker v palmer f do not effect we because we  only waive our executorship we have not be guilty of any laches for  administration be a judicial act style prove that a administrator may retain  in this case in this case both administrator and executor may retain  Administration relate to the intestate death in the present instance hob do  not extend to we and therefore it be hope that the defendant may have  judgement lee chief justice if this be a matter exist at the time of the first  plea it can not be plead after the last continuance or if there be any laches  in the defendant which be make apparent to the court I do not see but this  plea be proper plead c this be a action of debt upon bind bring against the  defendant as executor he plead a judgement due to himself upon which he have  recover and so justify by way of retainer c if this stand only between the  party the defendant must be take to be lawful executor then the plaintiff in  his replication disclose that the defendant be a tortuous executor which avoid  his plea of retainer for doubtless a executor de son tort can retain because  be shall take no advantage of his own meddle without a lawful authority Rep  coulter case then t defendant rejoin after the last continuance that he be  administrator the law be that where there be a meddle as executor de son tort  administration afterward grant purge that tort as in pain case style g it S  true that a subsequent administration modern er p shall not abate the  plaintiff suit because be can not call he by any modern other name than  executor but it enable the party to retain the difficulty be whether the  defendant plea be not such a admission of his be executor as to prevent his  plea of administratorship as inconsistent and it do not seem to I to be  inconsistent for the plea in this case must be take in the same sense with the  declaration I know no rule in law that plead matter after the last continuance  be a waiver unless it be other matter as in the case of barber v palmer in  salk which be a different defence hob be deny in salk these be plead  inconsistent with each other which the present case be not for there seem to I  no inconsistency in it or what amount to a waiver there be a objection that  the plaintiff be deprive of the benefit of controvert this judgement but there  appear to I no default in the defendant for the plaintiff before his reply may  have traverse the judgement if he have think fit and I do not see what other  method the defendant can have take but before I give my opinion I shall be  glad to look a little into the authority a great number of which have be cite  in this case page justice I do not think it a waiver in this case the  substance be the same it be only a continuation of the same defence the  tortuous executorship be purge by the administration and as I take the matter  at present I think it be well enough but I desire to consider further of it  probin justice the plaintiff may have reply in this case that the judgement be  by fraud that there be asset ultra but he make another case and put the  defendant under a necessity of support his plea in which he have only set the  whole of the case before the court and that amount but to one defence if it  have be a difference from the first and inconsistent with the plea it have be  ill but I think it very consistent and the plaintiff himself have put his case  upon the rightful executorship this can be say to be the defendant laches for  administration may be dispute and it be not to be obtain immediate upon  application the next question be whether this be a departure I rather think it  a confirmation of the plea I incline to think the plaintiff may take issue  upon the whole of this as it make but one defence the case seem upon these  principle to be well reconcile but if my lord please we will look further into  the case though there seem to I to be no great doubt chapel justice the grant  of administration be the act of the ordinary and sometime take up a great deal  of time so that there appear no laches in the defendant there seem to I to be  no waiver or departure from the matter of defence the defendant admit his  executorship accord to the plaintiff declaration and do not direct admit that  he have prove the will c which will be another consideration if be bad  Administration relate to the intestate death and purge the precedent wrongful  executorship though administration pendent light will not modern abate the  plaintiff writ style roll Abr side keb this be no departure or waiver of the  bar but a defence of it where the plaintiff reply that the defendant be  executor of his own wrong shall he be prevent from defend himself and it will  be hard that the defendant shall not have his judgement in this case lee chief  justice upon the whole of this record there appear no title for the plaintiff  let there be judgement for the defendant unless cause be show before the end  of the term n b the plaintiff do not think proper to show cause