case bailey against wilson at the seal before Hilary term in chancery Geo  evidence in what case allow to be read in chancery in favour of a will S c bro  p c on a petition for a commission of review upon sentence of the court of  delegate here confirm a will make in Ireland which be contest for diverse  reason a objection be make for read the evidence of Mr Magill in favour of the  will as to which the case stand thus the testator have give several specific  legacy of a watch plate c to different person and appoint the defendant Wilson  executor it appear in proof in the cause that Wilson immediate after the  testator death send for Magill and several other to who these specific legacy  be give that Magill in Wilson presence take the thing so bequeathe and give  they to the legatee without Wilson hinder it though Wilson do say there be  time enough to do it and that it be too early but Magill declare that the  testator have devise it and that he shall see they distribute modern report  the objection to Magills evidence be that by this act he have make himself  executor de son tort and be therefore interest in the event of the cause  because if this be not a good will the person to who administration shall be  grant will have a action against he as a trespasser and in trover will recover  damage against he to which it be answer for the defendant that Magill be  interest on both side for he be liable to have a action bring against he by  Wilson the executor and though a man shall be final interest in the event of a  cause if he be not principal interest his be consequent so will not go to his  competency though it may to his credit thus if a estate be leave to a for life  and after to the parishioner of b the parishioner shall be competent witness  because every man who so give evidence may die before this remainder come into  possession so the heir at law may give evidence for his ancestor because his  ancestor may dispose of his estate otherwise than to he and cite east India  company v Goslin in the king bench about two or three year ago where at the  trial the sailor who have forsake the ship as well as the captain be refuse  upon a presumption that if they have not do their duty they be Chargeable but  upon motion for a new trial it be grant because they not be principal but only  consequent and without certainty interest in the cause be not incompetent  witness but their credit must be leave to the jury there be also cite the king  v bray before this chancellor when chief justice which be upon a information  relate to the borough of Tentageu where it be hold that the mayor of the  corporation be no incompetent witness to give evidence of a custom as to what  he do when he be mayor Mr attorneygeneral reply first that the executor of  this will can not maintain a action for these good against Magill second  suppose be can yet he can not recover such damage against he as the  administrator will in case this will be make void as to the first where there  be a lawful executor he modern report er p only have a right to bring trover  against a executor de son tort but it be under consideration of the jury how  far the action be maintainable and what damage shall be give and therefore in  case of debt pay by a executor de son tort be can plead that he have pay the  debt but shall give it in evidence and shall be recoupled in damage in a  assize bring against he by the disseizee   Carth skin and this not because the  payment be original a good one but that justice may be final do to both party  and at the same time he be punish for meddle with what do not belong to he be  may not be oblige to pay twice the same sum but in the present case no such  action can lie for a man can bring a action for a act do by his consent the  legacy be pay with the executor privity and his not hinder it must be take for  a consent suppose the lawful executor have bring a action against the modern  report legatee for he have right if the property remain in he to bring a  action for the good wherever they be can there have be a verdict for the  executor No certain the legacy be give and ought to be pay and though the  executor assent be necessary yet it be not from that assent the legatee derive  his right but from the will the assent of the executor only complete the right  and therefore the least thing will serve to prove it where the executor can be  injure by it and even where he can if it be show it be sufficient and here be  no want of asset now if he can recover against the legatee neither can be  against the executor de son tort for he can recover against he only upon the  foundation of the property remain in he which be the foundation of the action  against the legatee but second suppose the action do lie there be no ground  for put the two interest upon a level there be such a difference of what one  and the other shall recover in the one case the whole will be recover in the  other but a inconsiderable trifle and it be this difference of interest that  will prevent he from be impartial now what will the lawful executor recover  against the executor de son tort it be say that the court can consider what a  jury will do but only what the law give but what be damage be they not what a  jury must inquire into and contain the prejudice which the plaintiff on demand  have suffer in a action of trover nothing be recover but damage and the court  must direct the jury that what they think the plaintiff have suffer be the  question and what damage have he suffer here nun it be to prevent circuity  which a court of law always do where there be not a necessity as where the  action be not bring for a special thing that be shall recover next to nothing  suppose the rightful executor shall bring a bill here against the executor de  son tort will the court oblige he to pay over again what he have once pay No a  executor de son tort shall be allow a payment which the rightful executor  ought to have make Chan can and so justice be do on both side how then can he  be say a disinterest witness since the reason for reject evidence be the bias  of mind arise from the interest the witness have in the event in the case of  the eastindia company v Goslin the sailor be admit from a necessity of the  thing and beside the duty of the captain and the man be different it be their  duty to obey he and while they do so their bind to he can not be forfeit so  where a goldsmith servant be admit to swear to all account it be for the sake  of necessity Hardwicke Lord chancellor the question be whether the objection  to Mr Magill S evidence go to his own competency or only to his credit and I  be of opinion it go only to his credit and not his competency in order to  determine the question I shall consider this fact in two light first how the  point stand suppose Mr Magill to have act as executor of his own wrong second  as act with the privity of the executor name in the will as to the first  before probate modern report of the will be deliver part of the testator good  to person name legatee in the will it be say that if the will be not valid be  be liable to make satisfaction to the administrator for the conversion of  these good to which it be answer be be liable either way and the possibility  of a action against he by the executor be weigh against the other set off the  matter at large there be many case where if a witness be liable to account  either way be shall be examine which answer the objection in respect of his  competence and this objection of a man be liable to a action differ from his  immediate be interest there have be modern report er p some change in the  doctrine on these point their be case in the old book where a man be liable to  a action go to his competency but there be a great difference to be make  between have a immediate interest and a possibility as in the case of tenant  in tail with remainder over in a action bring against the tenant in tail the  remainderman can be a witness though a heir at law may as have nothing vest in  he but the remainderman have a vest interest which the law consider as part of  the same fee and therefore the support the tenant in tail interest be the  support his own now these vest interest be very different from a possibility  of action for suppose a action of trespass bring for a nuisance and the  question be whether the defendant work upon the plaintiff soil the action may  be bring against the principal alone or the workman may be join as defendant  with he but if they be not join they may be bring as witness and yet they be  liable to have a action of trespass bring against they and their confession  may be evidence against themselves but the court say that may go to their  credit not to their competency and the reason of allow they be that truth may  the better come out there be a case mention of the king v bray before I when  chief justice of the king bench which be upon a information relate to the  borough of Tentageu upon the nomination of elisors who be to return the jury  at the trial the mayor be call to prove the custom and object that he be the  mayor that act and be now bring to establish his own act in which if he have  do wrong he be liable to be punish and baron Thompson who try the cause allow  the objection but upon a motion for a new trial the court of king bench be of  opinion that the objection go only to his credit not to his competency a new  trial be grant in the argument of that case several other be put particular  the king v clark where upon a information for a nuisance in the river of  Thames a person who have receive a particular injury and damage by it be  produce as a evidence and object to because he may bring his action on the  case and recover damage and so will swear under a bias but the court hold this  go only to his credit not to his competency this be the general rule as to  point of this nature let we now consider the answer that Magill be liable to a  action either way it be admit this will be sufficient if the damage to be  modern report recover against he be equal which be not the case here for the  lawful executor can recover no damage without deduct what have be rightful pay  accord to the will I never know in any case where this answer be give the  court enter into the consideration what may be the quantum of the damage there  be always a difference in the damage perhaps no action may be bring or the  witness may be favour by the party he support still if there be a equality by  a action on each side the court will not enter into the consideration of the  damage and it will be go too far now to enter into it in order to determine  whether this objection go to a man competency who be in the nature of a  executor of his own wrong as to the abatement in damage nothing be say of it  in read case   b be be liable to a action by the creditor and to a action of  trover by the executor as a wrongdoer indeed in Carth it be mention by Lord  holt that in trover bring by a rightful executor after probate against a man  act as executor of his wrong he can plead payment of his debt but shall give  it in evidence that the plaintiff may not recover the whole against he this  amount to no more but that he may give it in evidence in mitigation of damage  and he can plead nothing but not guilty and can set himself up as executor  because he will be answer that the plaintiff be executor and have a probate  but nothing be say in that case touch this point by the other judge and the  judgement be give against holt opinion it be lie down somewhat different in  the office of executor which be a book of good authority if a executor de son  tort pay debt this payment be good and if the payment be out of his own good  be may retain yet that must be understand with this difference that the  payment shall stand as against creditor but not against a rightful executor  for then any stranger may usurp and take from he the liberty which the law  give he of prefer one creditor to another nay of prefer himself to other  creditor in equal degree with himself and therefore upon a action bring by a  rightful executor against a executor de son tort if the value of the estate  appear clear and that the debt be good debt modern report er p the court will  direct the jury to deduct this in damage but if there be a doubt about it the  rightful executor shall not in this action be put to account for the value of  the asset and it will be wrong to suffer a man who be a trespasser to enter  into it but leave he to recover as he can there can therefore be any certain  rule and it can be say what damage shall be recover now what appear in the  present case what be the quantum of the asset what be the debt whether the  legatee ought to have their legacy how then can it be ascertain that he be  liable to more loss one way than another it be therefore a good answer to say  there be a equality of action which way soever this be determine there be a  great difference between a exception to a witness and a challenge to a juror a  juror must stand indifferent before he be swear and therefore a objection to a  juryman need not be so modern report strong as that to a witness for a  exception to his credit go to his competency both be blend together but it be  otherwise in witness who though their credit be weak rare still admit that all  the light possible may be have this be the fact in the east India company v  Goslin the question be whether sailor who have give bind to the master and  have desert the ship can be examine to prove the ship be not forsake without  cause and as they have no interest in that particular action the court think  the objection go to their credit not to their competency and of late court  have bear towards allow such objection only to the credit of witness second if  Magill be consider as act with the privity of Wilson this make his evidence  receivable here without dispute now Wilson account amount to this that after  the testator death be send for Magill that there come several friend and  particular the legatee who Magill propose deliver their legacy to save the  testator have desire he to see they deliver that upon Wilson save be think it  too early to deliver out effect Magill reply the testator desire it and he do  accord deliver they in Wilson presence who do not say that he object to it be  not this sufficient to make it Wilson own act for a executor may before  probate dispose of the estate and if a disposition in consequence of the will  be make by another with the privity of the executor it be do by his consent  and that person be no more than his agent will it therefore be a objection to  a witness that a executor have employ he as his agent and yet in such case the  man be liable if the will be set aside but it never be think that because a  witness to a will be employ in the management of the estate and distributor of  the effect that shall take away his competency and the consideration of action  to be bring against he hereafter be too remote take the case in this light  which be the right one the objection will not go to Magills competency for any  man who have meddle even for a moment will be liable as a trespasser to be sue  by the administrator but this be too remote a consideration I be therefore of  opinion Mr Magills evidence shall be read