case MIDDLETON walker plaintiff Israel woollaston defendant stram Fitzgib  Barnard b r a administrator pendent light touch a will may maintain action for  recover debt due to the decease this be a judgement give in the common plea  wherein the now defendant be plaintiff in a assumpsit on a promissory note  bring by the then plaintiff woollaston as administrator de good Nathanael  clerk non administrate by Frances his late wife and executrix pendent light in  the spiritual court touch the will of the say Frances in which suit in the  spiritual court woollaston the executor name in the will of France be  plaintiff against the nephew and niece of Frances clerk the plaintiff in the  court below recover judgement and pound damage upon which the defendant below  walker bring a writ of error and assign the general error the question be  whether a administrator pendent light where the suit in the spiritual court be  touch the executorship may maintain a action for recover the debt due to the  decease peer William and to show that he may I argue as follow saint what I  shall insist upon will be the reason of the thing dly I shall mention such  authority as be in my favour dly the great inconvenience that will ensue if  the law be against I in this point and in the last place shall endeavour to  give a answer to those case which have be cite on the other side first I  presume it will be admit that though a man make a will and appoint a executor  yet if the executor be under any incapacity or disability of act as such he be  during his incapacity in many respect as no executor and therefore for that  time it be consider as a intestacy for this reason the ordinary may in these  case during the incapacity or disability grant a temporary administration and  such temporary administrator may sue and bring action as well as any other  administrator to who a complete administration be grant I shall instance in  the common case where a infant under the age of seventeen year be make  executor here in regard the infant by reason of the tenderness of his year be  for that time incapable of act as executor the ordinary may grant a temporary  administration to another during the minority of the infant until his age of  seventeen and such temporary administrator may sue and bring action within the  same reason be the case where upon the death of a man there be a litigation in  the spiritual court touch the executorship to the decease since during this  contest none can act as executor and therefore the ordinary may grant  administration to peer William another pen this suit which administrator may  sue it be part of his office to recover and get in the debt of the decease I  admit former there have be opinion particular in Owen that a administrator  durante those inferior in rank tate can not sue Lord dyer have hold that such  a administrator be but as a servant or bailiff but I take the law by very many  case and by a constant course of experience to be now settle that a  administrator during the minority of a executor though grant in the most  restrictive manner only peer William er p ad use just infant may however  maintain a action for a debt due to the decease this be admit in Rep Pigot  case so as the administrator make a proper averment that the executor be under  seventeen and so be hob carver versus haslerig and indeed such suit be real ad  use just of the infant executor as they be bring in order to recover debt due  to the estate these authority warrant a administrator during minority c to sue  be carry much far roll Abr wright case and brown where it be adjudge that if a  administrator during minority c bring a action recover judgement and before  execution the minor executor attain seventeen he be so far privy to this  judgement that by a special to know facias he the executor may sue execution  thereon if then a administrator durante those inferior in rank tate c ad use  just infant who in some book be say to be as a bailiff or a servant to the  infant executor and in another book be call his curator vide skin Rep may  maintain a action for a debt due to the decease why shall not a administrator  pendent light though touch the executorship be allow to maintain a action also  since both be but peer William temporary administrator one determine on the  infant come to seventeen and the other with the end of the suit in the  spiritual court why shall not these temporary administration equal empower  each administrator to sue or rather do not all the authority warrant a  administrator during minority c to sue prove strong for we in the present case  I own it have be a question whether the ordinary can grant administration  durante absence of the next of kin beyond the sea Lutw and Mod Clare versus  Hodge and I find in a manuscript report which I have that the late chief  justice Pratt of counsel in that cause object it be a void administration as  it may end soon after grant and yet neither the administrator himself nor any  of the debtor to the estate of the decease know when it end because the next  of kin may return from beyond sea and the administrator or the debtor of the  decease know nothing of it that by this mean the debtor of the decease will be  draw in to make payment to the administrator after the next of kins return  consequent after the administration be determine and that such a administrator  durante absence c may be discourage from bring any action against the debtor  of the decease forasmuch as such action must abate by the return of the next  of kin from beyond sea before the judgement and the administrator lose his  cost but notwithstanding these objection which be real make though not report  in the book the court adjudge such a administration grant durante absence c to  be good and the very reason give as report in Lutw be to prevent the grand  inconvenience that will ensue if the debt of the decease can not be recover  during the absence of the executor beyond sea the court far say that if any  peer William of the debtor of the decease pay his debt to such a administrator  durante absence c though it be after the return of the executor yet if the  debtor who pay the money have no notice of such return it will be a good  payment now this case prove not only that a administration durante absence c  be good but that the chief reason induce the court to be of that opinion be  that by the administrator be enable to get in the debt due to the decease the  grand inconvenience which otherwise may happen will be prevent and if a  administrator durante absence c may sue within the same reason ought a  administrator pendent light the case in salk slaughter versus may not only  prove that a administrator durante absence may bring a action but also be a  express authority in this very point that a administrator pendent light touch  the executorship may if he make a proper averment the case be h be a  administrator durante absence of I S a executor bring a action of debt on a  bind but do not aver that I S the executor be then absent or where he be upon  which the court say it be but reasonable the ordinary shall have power to  grant administration during absence as well as during minority or pendent  light and that such administrator be Accountable to the executor who absence  must be intend a absence beyond sea but the plaintiff ought to aver he to be  absent now in this case it appear that the court put these three temporary  administrator upon the same foot and I believe in all book where name they be  consider as on the level and if so no reason can be give why a administrator  pendent light touch a executorship shall not bring a action as well as a  administrator during minority or during absence nay the allow the  administrator durante absence to bring a action be a strong case than the  present because there peer William the administration may determine and yet  neither the plaintiff the adminis peer William er p trator nor the defendant  the debtor know any thing of nor have any possibility to discover it also in  that case there be all the time a good executor capable of act who may prove  the will by commission or sue by letter of attorney whereas the end of a suit  during the pendency whereof administration be to continue may be see by any  one at any time resort to the proceed in the court where the litigation touch  the executorship depend therefore all these authority which warrant action to  be bring by a administrator during the absence of a executor be just so many  authority for I and the case of slaughter versus may mention that of a  administrator pendent light touch a executor be a authority in the very point  in gibson Codex law Church rites anglicani page these three temporary  administration be take notice of and put upon the same foot beside which be  add that though there be no suit or controversy depend touch the executorship  and though there be a executor yet if he do not come in the ordinary may grant  a temporary administration until the executor come in and prove the will also  it be hold that if a executor afterward become lunatic and thereby disable  from act there for necessity sake the ordinary may grant a temporary  administration with the will annex this I remember be say by holt chief  justice in the case of hill versus mill report short in salk but that  otherwise it be if a executor become a bankrupt because there be no disability  in such case no temporary administration can be grant but of very little use  will all these temporary administration be if by virtue of they the debt of  the decease can not be recover peer William it be object that no administrator  before the statute of Edward cap can bring a action and that the statLite  empower a administrator to sue do not extend to one pendent light resp all  these temporary administrator be equal out of the statute and in such  administration the ordinary be not bind to grant they to the next of kin as be  hold hob brier versus Goddard and vent Thomas versus butler but if a  administrator during the minority or absence of a executor may sue though out  of the statute why may not a administrator pendent light sue also I take all  these temporary administrator to be within the reason and equity of the  statute of Edward as they be dispute by the ordinary which be the very word  and since in all those case the decease die for the time and to some purpose  intestate there be then no person to act as executor now I will consider the  very great and manifest inconvenience which will ensue if a administrator  pendent light touch a executorship can not bring action to recover the debt of  the decease suppose these consist only or chief in outstanding debt owe on  hazardous security or from person in doubtful circumstance in apparent danger  of be lose if not sue for in time will it not be a irreparable loss to the  estate and to the creditor of the decease if for want of a power give by law  to the administrator pendent light all those debt shall be lose suppose the  chief part of the estate consist of debt in trade as book debt which be simple  contract and liable to be bar by the statute of limitation and that the six  year have begin to incur in the lifetime of peer William the decease and  consequent must run on will it not be a thing of the most mischievous  consequence and render the law extreme defective if the administrator pendent  light be not allow to sue for these bookdebt in order to prevent they from be  bar by the statute and thereby secure the estate of the decease and perhaps  save his creditor from be ruin the other side in this case be endeavour to  make a very nice difference where real there be none betwixt a administrator  pendent light and other temporary administrator and yet to what purpose be  this extreme nicety to be support why only to introduce great and public  mischief on the other hand there can be no inconvenience in allow this  administrator pendent light to sue for the debt of the decease the hand of the  administrator who be to recover they must be suppose safe this court may so  far take notice of the spiritual court as to be sensible that these temporary  administrator give security there proportionable to the value of the estate of  the decease or if that be out of the case every person be prima fancy intend  by law of sufficiency to perform his trust and not to be insolvent nothing  wicked prsumendum and whatever such administrator do receive of the estate of  the decease he must be Accountable for to the executor when he shall have  prove the will beside as this adminis peer William er p trator be allow to be  sue why shall he not also be allow to sue why shall it not be mutual especial  since he allow he to sue be the only way to enable he to answer the suit bring  against he I must own that a executor de son tort may be sue and yet can sue  for as he come in entire by wrong and as a tortfeasor he shall have none of  the privilege of a rightful executor but in the present case our administrator  pendent light can be say to peer William come in by wrong when he be  constitute by the act of the court of that court too which have a proper  jurisdiction in grant administration it will be admit that a administrator  durante those inferior in rank tate of a executor though it be but ad use just  infant may yet sell good to pass away and the like power will I presume be  allow a administrator pendent light and why be this when such administrator  can sell no other good sure for the sake of necessity and to prevent these  good to pass away from be destroy and be there not the same necessity to take  care of hazardous debt and prevent debt by simple contract from be bar by the  statute of limitation do not they require the same care to secure they from be  lose as good to pass away do yes certain as probable the debt be of a much  great value than the good the spiritual court have of late come into this way  of grant temporary administration and my lord the judge have be please to  allow they good in law though out of the statute which permit nay require the  ordinary to grant administration and this the court of commonlaw have do for  the ease and convenience of the subject which be indeed the chief end of all  law but it will very much lessen and take off from the use and benefit of  these administration if it shall be adjudge that none by virtue thereof be  capable of sue for and recover the debt of the decease this construction will  reduce the grant of letter of administration pendent light to no more than  letter ad to obtain by begging good c and now as to the authority which have  be cite on the other side though I here beg leave to premise that nothing less  than solemn resolution such as be find on good reason ought to be sufficient  to introduce so great a peer William inconvenience whereas as I take it among  all the authority cite against we there be not one case adjudge on the point  as to more robin case Trin Eliz it be thus two executor contest in the  spiritual court whereupon the ordinary grant administration pendent light and  it seem to the court semble say the book that he can not do it these be all  the word of the case but here be no opinion and to overbalance this authority  I will Q against it the case of slaughter versus may in salk and the reason  give in Lutw for the resolution in Clare versus Hodge here be two authority to  one which say it be a great inconvenience where none can sue for the debt of  the decease and as they be the latter so be they the better authority as to  Carthews Rep Frederick versus hook that be a action of debt on a bind bring by  the plaintiff Frederick on a special administration quoad the bind pendent  light concern the last will of the lady Frederick the defendant plead in  abatement that the lady Frederick make her will and thereby constitute the  plaintiff her executor and that the plaintiff to take super see onus  performance predict and pray the judgement of the court for that the plaintiff  bring his action as administrator and not as executor upon which the plaintiff  demurrer the court hold that the administration grant pendent light in the  spiritual court concern a will be utter void and that the difference be where  there be a controversy in the spiritual court concern a right of  administration and where it be concern a will as in that case that in the  first the administration grant pendent light be good but otherwise peer  William where the controversy be concern a will for he who come in under a  will shall avoid all which a administrator can do and then it be say in the  end of the case that the plaintiff proceed no far in that action now it be  plain upon the word of the book that this case be never adjudge but the  objection start upon the demurrer and at that time the court hold the  administration grant pendent light touch the will void whereupon it be say  that the plaintiff proceed no far in that action and possible he have no  occasion the defendant in so plain a case as that of debt on bind have gain  some time by his plea probable pay the money or it may be the will of lady  Frederick be soon afterward prove and so the objection remove but this be not  mention only so far appear that no judgement be give in the case in the next  place it be observable that this very authority allow a administration grant  pendent light touch a administration to be good whereas peer William er p this  temporary one be as much out of the statute enable the ordinary to grant  administration as any other temporary administration whatever and so this very  case cite on the other side answer one of the objection which they make but  the reason be very slight which be give by the book to make a difference  betwixt a administration grant pendent light touch a administration videlicet  that this be good but that a administration grant pendent light concern a will  be void why because he that come in under the will shall avoid all that a  administrator pendent light can do now this be no reason at all all that can  be mean by it be but this that a executor shall avoid any grant assignment or  release make by a administrator pendent light of any part of the decease  estate if make to his prejudice but the administrator sue of debt due to the  decease and prevent their be lose by the debtor peer William become insolvent  or from be bar by the statute of limitation be a service and can be no  prejudice to the executor the administrator pendent light as soon as he  receive a debt be Accountable for it and must pay it over to the executor it  can sure be intend by this reason of the executor avoid all act of the  administrator pendent light that if such administrator recover judgement  against a debtor of the decease for a debt due to he and take out execution  that the executor shall avoid all this and make the debtor pay the debt over  again which he be before compel to pay by course of law and which the executor  be at liberty to receive at his pleasure from the administrator pendent light  this will be do a great hardship without the least occasion or put this case  far suppose the administrator pendent light have get judgement against a  debtor of the decease and have thereby secure the debt but before any  execution sue the executor have prove the will whereby the administration  pendent light have determine can this any way prejudice the executor No so far  from it that as I take it the executor when he have prove the will may take  advantage of this judgement and bring a special to know facias in order to sue  out execution on it in the same manner as a infant executor have attain  seventeen may sue out a special to know facias upon a judgement recover by a  administrator during the minority of the executor which have be adjudge so  that the reason give why the executor shall avoid any act do by the  administrator pendent light can only relate to grant assignment or release  make by such a administrator to the prejudice of the executor whereas all  those which be do for his benefit shall stand peer William the other case be  that of smith versus smith cite by sergeant Carthew in his report of the  former of Frederick versus hook from keb c and this I admit to have be adjudge  but however it will not as I apprehend appear to be material to the present  question there the plaintiff bring trover as executor for the conversion of  some good and on not guilty plead the jury find a special verdict that the  plaintiff be the executor name in the will of I S that the good in question be  the good of I S and that the defendant in the action of trover have  administration grant to he of the good of I S pendent light touch the will  adjudge for the plaintiff in trover because the administration be mere void  and the book say that this judgement be also give upon the distinction  abovementioned now that this judgement be very right and just I free allow but  that the same be give upon the distinction betwixt a administration pendent  light touch a will and a administration pendent light touch a administration I  can hardly think all determine in this case be that the property of the good  of the decease be in the executor and not in the administrator pendent light  which I admit for so in the case where a administration be grant durante those  inferior in rank tate of a executor the property of the good be in such infant  executor and therefore a administrator during minority can sell any of the  good which he necessary may do if he have the property but it be plain that a  administrator durante those inferior in rank tate may sue for the debt due to  the decease though he can assign or sell any of his good and therefore this  case only show that a administrator pendent light be upon the level with a  administrator during the minority of a infant executor which I do not  controvert so that upon the whole as the peer William principal case in  sergeant Carthews report of Frederick versus hook be not adjudge and as the  reason give for the opinion of the court rather weaken its authority and that  cite there and report in Keble of smith versus smith though adjudge be not to  the purpose I humble apprehend that from the reason of the case now in  question which be strong for we from the very great mischief and inconvenience  that will follow if a administrator pendent light can not sue and recover debt  due to the decease to the great loss of his creditor and perhaps to the ruin  of the estate as there be not one peer William er p adjudge case against we  and on the other hand several in our favour determine that a temporary  administrator may sue and in the last place as there be other that put all  these temporary administrator upon a balance or upon the same foot I be to  pray that the judgement give in c b may be now affirm whereupon the Lord  Raymond chief justice page and probin justice be of opinion for affirm the  judgement and that the ordinary have a power to grant administration pendent  light though touch a executorship that the reason of the ordinary  administration durante minore tate of a executor be because the executor there  be no person capable of sue or recover that pendent light there be no executor  that can sue such case be within the same mischief which will be attend with  very great inconvenience for the reason that have be give that the case of a  administrator during the absence of the executor be strong there be a executor  be able of act who may by commission prove the will and sue by attorney that  all these temporary administration though out of the statute of Edward peer  William and Henry be yet allow to be within the equity of those statute for  the ease and convenience of the subject which ought to be consider that in the  case cite from more and Carthew be be no judgement and the reason give in the  latter of those book do not maintain the opinion but lee justice doubt for he  say a administration pendent light touch the executorship seem to differ from  administration durante those inferior in rank tate or durante absence of a  executor because in the two last case the administration be grant cum  testament fastening which can be do when the will be in controversy adjourn  but judgement be afterward affirm with the concurrence of Mr justice lee so  will v rich atk see Adair v shaw Sch l gallivan v Evans ba be Atkinson v  Henshaw V b ball v Oliver V b