visees should be deprived of the benevolent intentions of a testator. On the part of the defendant, against the motion, it was urged, that the right of honest creditors, and tona fide purchasers, under sales made by operation of law, in pursuance of judgments and executions, were as high and as much deserving the attention of the courts of justice, as the rights of heirs and devisees. That the latter were acts of bounty, but the former acts of justice, and it was an old adage, that a man ought to be just before he is generous; nay, the for mer claims stood in a much higher degree than the latter. It was admitted that the old rule of court did require execu tors and administrators to file their accounts of administration, with their pleas of plene administravit; but this was intended for the benefit of estates, and those claiming under the testator, and to justify executors, and to shew that they had no effects in their hands to pay debts; and if the execu tors or administrators should be regardless of their own conduct, as well as of the interests of the estate, and those claiming under the bounty of a testator, that was no reason why creditors should be deprived of their rights, which were paramount to the rights of heirs or devisees. Neither the rule of court, nor any other regulation of practice, can alter the law of the land, which subjects lands in this country to the payment of debts, whatever the line of conduct of executors may be in the exercise of their duty; for it is clear if an executor will not produce personal estate, any land that can be found must go for the payment of just debts. The Judges, after considering this case, observed, that it is always in the power of an unwilling executor, if he pleases, to keep personal estate out of view, so as to prevent a sheriff from seizing or selling them in satisfaction of an execution. Whereas, that cannot be done with real estates; they are, therefore, a surer pledge for satisfaction of creditors than any kind of chattels; and they are made chattels in Ashe V. Drennis. Ashe V. Drennis. this country for payment of debts; and it was by no means unfrequent that executors chose to retain negroes, who compose the principal part of the chattels of this country, in preference to land, as a more productive kind of property; it would, therefore, be extremely unjust, to keep a creditor out of his money, under these circumstances. The rule of court (as has been very properly observed) was made for the advantage of estates, under an idea that it would be most for the interest of an estate, to exhaust chattels before lands were disposed of, for the benefit of those interested in it; and for the satisfaction of executors, to shew they had no effects in their hands to pay debts. But, if executors were negligent in filing an account of the estate, with their pleas of plene administravit, by which, it might appear, they had exhausted all the chattels of the estate, that was no reason why just creditors should be delayed; and if heirs or devisees are injured by it, let them look to the executors for any damages which may arise from their misconduct. Bona fide purchasers at sheriffs' sales, were not to be affected by their omissions or neglects. Rule for new trial discharged. Present, GRIMKE, WATIES, BAY and JOHNSON. MARTHA SURTELL ads. WILLIAM BRAILSFORD. UPON a motion to set aside a judgment on the ground, that the bond on which this judgment was obtained, was given by defendant while she was under coverture. Charleston District,1801. A married woman keep ing a shop and carrying on trade in her name, account without the On the inspection of the record and proceedings in this own and on her case, it appeared that judgment by default had been obtained in this case, in September 1789, which had been duly entered up, and remained unsatisfied till the present day. Mr. Cheves, for defendant, produced her affidavit, in which she swore that at the time this bond was given, she was a married woman and under coverture; although it was alleged that her husband was since dead, and she was then a widow. the bond in For the plaintiff, in reply, it was urged, and it was not denied, that at the time when the defendant gave question, she carried on business as a milliner and shop-keeper in her own name publicly in Broad-street, as a feme sole dealer, and continued to do so ever since; and had during all that time, transacted business as a sole dealer in her own name, without her husband's ever being known, or in way whatever interfering with her business. any Mr. Cheves, in her behalf, proceeded in his motion, and contended, that coverture was a good ground for setting aside the proceedings in this case, as it was well known in law, that the acts of a married woman were void, as her civil capacity as to contracts was so incorporated with that of her husband that she could make no valid contract whatever, and that if she did presume to enter into any, it was ipso facto void. That this was one of the grounds for reversing proceedngs in error, but as no writ of error had been allowed in this country, all the advantages which could in England be own interference of her husband for a number of years will constitute her a sole trader at common law. Coverture ought to be pleaded in abatement; it is too late to make it a ground for a motion to set aside a judg ment 12 years after it was entered up. No writ of error allowed in this state, vantage which as every ad could be de rived from it may be taken on motion in the constitutional court of appeals. Court will not unravel proceedings or judgments after several years acquiescence. Surtell ads. Brailsford. derived from it, ought to be allowed on motion in this court, which among other great objects of its jurisdiction was the proper court for the correction of errors. In fact, he said, errors and appeals were the great branches of its jurisdiction which was secured by the constitution to the citizens of this country, and that there was no other mode of getting redress in all cases of error but by motion in this court. He then proceeded to shew, in what cases error in England would lie, and that this was expressly one of the cases contemplated by all the books for reversing proceedings in error, and for that purpose cited Salk. tit. Error. Bac. tit. Error. Barnes's Notes, 270. 2 Will. 3. Mr. Pringle, on the same side, quoted Mrs. Rippon's case, who was discharged after she was taken on a ca. sa, on the ground that she was a married woman; he also quoted 2 Bac. tit. Error, 487. but said, the case in 2 Will. 3. cited by the counsel who had preceded him, was so strong, that it would be a waste of time to quote more authorities on the occasion, where it is expressly laid down, that a judgment confessed by a feme covert is void, and so is her bond. Mr. Simmons, against the motion, admitted that the general position was true, that the contracts of a married woman were void, and that many adjudged cases in the books, and some in our own courts supported and proved the general doctrine of the law on that head; but to this general rule of law there were exceptions; as where a married woman carries on trade by herself, in which her husband does not intermeddle, and buys and sells goods in that trade, she shall be considered as a feme sole at common law, and shall be liable on such contracts; Cro. Car. 69. Show. 184. Skin. 67. Lev. 131. and this point had been determined in this court after solemn argument in the case of Newbiggin v. Pillans and Wife; so that he considered that case as settling the law upon this subject. As to the facts of this case, it was notorious and would not be denied, that the defendant carried on business as a milliner and shopkeeper in Charleston, as a sole dealer for ten or twelve years, and upwards; and no person ever knew or heard of her having a husband, until her affidavit was brought forward on the present occasion; and this husband, if he ever existed, never was in this country, but died in England, so that he never intermeddled in her trade and shop-keeping business; that she is to be considered as a feme sole dealer at common law, to all intents and purposes, and liable as such. Another ground, he said, on which this motion should be rejected, was, that it was too late after a lapse of twelve years. He admitted, that the writ of error was unknown in this country, but said that every possible advantage which could be derived from that process in England, might be taken advantage of in this court on motion. This court has by the constitution, a general and superintending power and control over all the other courts in the state, to reverse and set aside all irregular proceedings, and to correct all errors and mistakes in pleading, and in the conducting of suits, provided such motions are brought forward in a reasonable time, agreeable to the rules and regulations prescribed for that purpose. But if persons would lay by, and not avail themselves of this advantage in due time, it is their own faults; they have themselves to blame for it. Previous to the passing of the state constitution, an adjournment day was allowed after the conclusion of every term, which did not exceed twenty days after the end of each court, for bringing forward before all the judges, all motions for the correction of errors and rectifying mistakes, or for the advancement of justice, as the parties might think proper; here was a legal and proper opportunity allowed by law for all such motions. This was thought so important a tribunal in this country, and so necessary for the great ends of justice, that the citizens of this state, in forming the constitution would not let it longer depend on an act of the legislature, which might Surtell ads. Brailsford. |