The. question, in this case, is, whether an executor, de'son tort, can plead the statute of limitation, created by the act of 1715, eh. to. if this were a plea that tended to the personal benefit of the executor de son tort, he ought not to be permitted to avail himself of it, but it is a plea, pleaded for the benefit of the estate; the rights of the Defendant are not, in any respect, thereby afferled, and creditors have a right to bring actions against him ; and I see no reason way they should succeed in making out their claims against him, with more facility than they could do against the rightful executor ; certainly other creditors, and the next of kin-would be thereby injured. If a rightful executor can plead such a {.-lea, for the purpose of protecting the estate, I think the Defendant may do it in the present case. The Plaintiff will not be in a worse situation than if ho ban sued a lawful representative of (lie estate. No hardship or inconvenience is pointed out in this case, that might, not equally apply to the other. — (1 Wentw. office of Ex’rs. 177 — 3 Term 588 — 10 Ves. 93 — Andrews Rep. 328 — 2 Str. 1106.)
The act of 1715, commonly called the seven years bar, was intended for the benefit *549a«;l protection of the estates of de-ad mc'5¡; not for the protection of those who have the management of them. or way represent the dead men ; and the Plain'd if Istn big- chosen to consider the Fk-fiesdmit as ami thrown oil him the defence of the- assets, sha'I not oust the estate of any defence to which it woüd be, entitle*’ in the hands of a rig-bifid executor, for ii would he very suarge that a demand should be, enforced against tin; estafe, v. hen ike estate, is defended by one person, and mot when defended by another. I think the distinction is, that what will protect the assets ¡nay he used in. citiier j those rigid s which the law allows to the executor, on account of his odice, can be claimed by ¡be rightful executor only, as the right of retaining compensation for his trouble and others $ i" there lie any of the, tike hind, possibly [lie, right of offering a set-off, may fee one exception from Ihe above rule, this can be denied im the wrongful executor, only on technical reasons, to wit; that as he cannot sustain suits for want of loiters teda-menta ry, lie cannot set off against a demand nsm?* the assets $ and, as the declared object of lhe statutes &%w« lug a, set off, is to prevent u multiplicity of suits, it can only be used where it can have, that effect. The soundness of this reasoning it wiil be sufficient to exam; •<;, when the ease occurs. It may be taken cither way, whii* out affecting the present question. Etilo for a new trial discharged.
Taylor, Chief Justice, dissented.