Executor and Executrix of SARAH HARTH, deceased, Charleston against WILLIAM HEDDLESTONE. TROVER for sundry negroes, tried at Georgetown, before TREZEVANT, J. Verdict for defendant. Motion for new trial. District,1801. The sale by an adminis trator of any part of the intestate's and chattels for of debts, &c. is good and valid, although such adminis trator may Defendant claimed under a bill of sale from an adminis- goods trator of an estate, who had sold the negroes in dispute payment without permission from the ordinary, or, in other words, had not conformed to his directions; and the question was, whether a sale by an administrator without the permission have had no of the ordinary, was good or not? Upon the trial it was urged, that the 19th clause of the executors' law of 1789 required," that when it should be requisite to make sale of "the intestate's personal estate, for payment of debts, for a "division, or to prevent the loss of perishable articles, application should be made to the court of the county, or "ordinary, for an order for sale; whereupon, the court "or ordinary, might grant or refuse such order, regulating "the time, place, and credit to be given, in such manner as "to do justice to all persons concerned therein." And this, it was contended, made it necessary to obtain such order before any administrator could make sale of any part of an intestate's estate. To this it was argued, that this was a regulation which did not alter the law at all upon the subject, but was a proceeding merely in favour of an administrator, and to lessen or divide his responsibility with the ordinary, in case fault should be found with his conduct at any future day, by any person interested in a distributive share of said estate; or at all events, to shew that he meant and intended to make the most of the estate for those interested, in case he should ever afterwards be called to account for it. But that it did not in any degree affect the right at any sale, of any bona fide purchaser, where no such order had been obtained. order from the ordinary to make such sales. Executor, &c. of Harth V. Heddlestone. ecutors, 366. The presiding Judge, in charging the jury, told them, that an administrator might take upon him to sell the personal estate of the intestate if he thought proper, without permission from the ordinary; and that his bill of sale was valid to the purchaser, who would be protected in the purchase. That there was nothing in the executors' law (clause 19th) which took away the powers given by law to administrators on this head, to dispose of the goods and chattels of the intestate. That an administrator was chargeable with a deceased man's estate, the moment he qualified and took upon him the burthen of the administration, and an action would lie against him in the same manner as Office of Ex- against an executor; and he is bound to pay off the debts of the deceased in the same manner, as far as the effects of the intestate will extend. That the administrator has a special property in the goods of the intestate, and he may do all acts which are incumbent on an executor to perform; he may sell all kinds of goods which are in their nature pe2 Bac. Abr. rishable, or which might be worse for keeping, or for payment of debts; there was nothing in this act which took away any of the powers vested in an administrator by law, and it would be a most dangerous thing to take them away by construction or implication; it would be against every principle of the common law. The law, he observed, was very favourable to sales made to fair and bona fide purchasers of property, at those kinds of sales made for the benefit of deceased men's estates by administrators, and therefore it is laid down, that if the ordinary grants administration to a stranger, and the next of kin sues out a citation from the spiritual court to have the administration revoked, and pending the suit the administrator sells goods to defeat the next of kin, and then letters of administration to the stranare revoked and made null by sentence; yet, in this case, the sale made by the administrator is good and valid in law. 381. 1 Roll. 910. Went. Office ger of Executors, 374. The jury in conformity to the judge's charge, found a verdict for the defendant in favour of the sale. This, therefore, was a motion for a new trial on the ground of Executor, &c. misdirection, and as a verdict against law. The Judges after hearing arguments in favour of the motion, thought it unnecessary, to hear arguments against it, as they were unanimously of opinion, that the legal principles laid down by the presiding judge to the jury were perfectly correct, and therefore refused the new trial. Rule discharged. All the Judges present. of Harth V. Heddlestone. MATHEW O'DRISCOLL against WILLIAM M'CANTs. THIS was an action to recover the penalty under the act of assembly, for cutting a rice dam contrary to law. Penalty 100%. Verdict for defendant. This suit was commenced under the act of assembly against cutting rice dams, except under certain regulations mentioned in the act, under the penalty of 100%. one-half to the informer, the other half to the state; in which the jury gave a verdict for defendant. On signing this judgment, it was moved to tax the costs against the prosecutor, for vexing the defendant without lawful cause of action, which was refused, and the cause came before the court by way of appeal from the prothonotary of Charleston district. After hearing arguments, the court refused to allow the costs in a qui tam action for the benefit of the public, observing, that no man would bring actions or prosecutions for the public good, if he was liable to be mulcted in costs in case of failure, unless it was a most wanton abuse of Charleston District,1801. No costs allowed against a prosecutor in a qua tam action, for the benefit of the public. O'Driscoll V. M'Cants. such an action, or where there were no grounds or probable cause. Rule for taxing costs dismissed. Present, GRIMKE, WATIES, BAY and JOHNSON. Charleston District, 1801. Endorsement of a note in part, and atterwards the residue, not HUDSON HUGHES against BENJAMIN KIDDELL. MOTION for a new trial. This was an action against defendant as endorsor on a note of hand, in which there was a verdict for defendant. good so as to The note of hand in question was given by David Bush, of charge an endorsor. Camden, to the defendant Kiddell, for 4731. sterling. Kiddell afterwards made the following endorsement, viz: “I assign over to Hudson Hughes, the sum of 1,930 dollars and 50 "cents, as part of this note of hand. "Signed, "BENJAMIN Kiddell." Afterwards he made another endorsement, and assigned over the residue of said note. (Signed, Benjamin Kiddell.) Mr. Ford, for the motion, contended, that both these endorse ments ought to be taken together, and considered as one endorsement, as it appeared to be one transaction, done at the same time, on the same day, and made to the same person. He admitted, that an endorsement of part was not good, but that the two parts in this case, to the same person, made the whole good; and as such, the court was bound to give it a reasonable and liberal construction, as it would not subject the party to different actions; which was the reason, why the law of merchants would not admit of the splitting up contracts, and allow of different endorsements on bills and notes. Mr. Pringle, in reply, contended, that from the very nature of the transaction, it must have been the intention of the defendant to restrain the negotiability of this note, as well as to exempt himself from responsibility; taking these endorsements either severally or jointly, they amount to no more than a bare authority to receive the money, or a relinquishment of the defendant's right to the note. It is not expressed for value received, so as to raise an implied assumption at law; but the law is clear that an endorsement for part is bad. Bailey on Bills, 34. For if it were allowable for a man to endorse for part, he might endorse 100 dollars to A. another 100 to B. and so on; and by that means, defendant might become liable to twenty different actions on the same bill. For these reasons, and to guard against this monstrous inconvenience, the law of merchants has established it as a rule, that a bill cannot be endorsed for part. Cunn. on Bills, 57. Now it is clear, from the gentleman's own acknowledgment, that the first endorsement for 1,930 dollars and 50 cents in part, is bad ab initio; and if so, then the subsequent endorsement for the residue never can give the first, legal validity; as it is most evident to reason and common sense, that two vitious or bad endorsements can never constitute a good whole endorsement. The Court, after hearing the arguments, refused to grant a new trial, on the ground that an endorsement for part of a note or bill is bad. Lex Mercatoria, 445. Carth. 466. And if so, then two vitious endorsements can never constitute a good one. Rule discharged. Present, GRIMKE, WATIES, BAY and JOHNSON. Hughes V. Kiddell. |