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X. Of the Allegata et Probata; and of Demurrer to Evidence.

176. An averment, that defendant promised to pay plaintiff a certain sum of money, is not supported by evidence, that defendant in a letter to F. D. states that he has agreed to pay plaintiff the said sum, and requesting F. D. to pay it. Magoffin v. Westbrook, A. R. 58. 177. Declaration in assumpsit, against S. B. describing a promissory note as with the proper hand of said S. B. thereunto subscribed; a note subscribed by S. B., executor of W. B., by her agent F. H. G., may be given in evidence-semble. Baldwin v. Stebbins, A. R. 180. 178. Evidence of a contract in the alternative, does not support a declaration, stating an absolute contract. Williams v. Kinnard, A. R. 196. 179. Declaration against Philip Taylor, supported by evidence of a bond, signed "Pilip Taylor." Taylor v. Rodgers, A. R. 197. 180. Declaration describing note in which time of payment is not named, is not supported by evidence of a note payable nine months after date. Callers, ex'r. v. Birney, adm'r. A. R. 206. 181. Declaration on a specialty, not supported by evidence of a note, having a scroll annexed with "seal" written therein, nothing being expressed in the body of it, that it was intended to be sealed.

Henderson v. Ross, A. R. 421. 182. Declaration on a promissory note, acknowledging money to be due to plaintiff, and promising to pay C-sustained by note to plaintiff, to pay C, sheriff to satisfy an attachment. Bowie, adm. v. Foster, A. R. 264. 183. Because an account stated, may be declared on as such, the plaintiff is not precluded from introducing an account stated under any of the assump

sit counts.

Stowe v. Sewall, 3 S. & P. 67.

184. Declaration against one as the maker of a note, by the name of "John" C, setting out the execution thereof by "defendant"—will be sustained by the production of a note signed by "J" C, there being no attempt to set out the note in hæc verba. Cantley v. Hopkins, 5 S. & P. 58. 185. An averment that one promised to pay the plaintiff, by the name and description of " Duncan McL." is sustained, by evidence of a bond payable to "D. McL." Mc Rea & Augustine v. McLean, 3 P. 138. 186. A variance in the description of a contract which must be construed the same, whether the variance existed or not, not changing its nature, will not be regarded. Harrison v. Weaver, 2 P. 542. 187. On demurrer to evidence, the court must take as true, against the party demurring, not only all the facts plainly proved but all inferences which may be legitimately drawn from them. The evidence, however, is to be governed by the same rules as in other cases, as to the inference of witnesses. Carrington v. Caller, 2 S. 175. 188. When defendant demurs to plaintiff's evidence, the court may, in its discretion, compel the plaintiff to join therein.

Brandon v. Huntsville Bank, 1 S. 320. 189. Whether it be discretionary in the court to compel a party to join in demurrer-quere? But, in demurrer to evidence, the party must admit the facts and conclusions which may be reasonably inferred therefrom, otherwise the other party is not bound to join in demurrer.

Sawyer v. Fitts, 2 P. 9.

190. When the truth of evidence, adduced to support an issue, is admitted by a defendant, but its legal effect is denied, such defendant has a right to demur to the evidence, and the plaintiff in such case would be compelled either to join in the demurrer, or to waive the testimony.

Alexander v. Fitzpatrick, 4 P. 405.

191. For the refusal of an inferior court to compel a party to join in demurrer or waive the testimony-error will lie. Though it seems that a party would not be permitted to complain in error of the rejection of a demurrer, when the record showed it to be frivolous. Ibid.

See Assumpsit, Award, Bills and Notes, Corporations, Covenants, Execution, Interest, Partnership, Principal and Agent, Sheriff, Trespass and Ejectment, Usury, Release.

EXECUTION.

1. Property allotted to an administrator as distributee, not subject to an execution, against goods, &c. of intestate. Lewis, adm.v. Lewis, A. R. 95. 2. Lien of an execution destroyed by an injunction, semble-Crenshaw, J. dissenting. Barnes v. Baker & Sledge, A. R. 373. 3. Money made on an execution in favor of S; B claims the moneya former execution on B's judgment having been returned satisfied—his claim cannot interfere with S. Ibid. 4. No excuse for sheriff, in not returning an execution, that he put it into the post-office. Mc Whorter et al. v. Marrs, 1 S. 63. 5. When a plaintiff neglects to sue out his execution, from term to term, an execution on a younger judgment, delivered to the sheriff in any intermediate time, will acquire a priority.

McBroom & Turner v. Rives, 1 S. 72. 6. Judgment against administrator; lands descended cannot, by sci. fa. against the heirs, be made liable to exeuction.

Bells, Trigg & Watkins, v. heirs of L. Robinson, 1 S. 193. 7. Prior to statute of 12 January, 1826, a motion would not lie against a sheriff, duly making his return, for failing to make the money on fi. fa. Williams v. McBroom, 1 S. 192. 8. An execution cannot be quashed, because more costs are taxed than are due. The error can be corrected, on a motion to retax.

Anonymous, 2 S. 228.

9. The execution loses its priority if it be not sued out from term to term; and, when an intermediate term is permitted to elapse, between an original and an alias execution, the issuance of a ca. sa. to the intervening term, will not continue a lien on property, created by the former execution.

Cary v. Gregg, 3 S. 433. 10. A plaintiff may sue out an alias fi. fa. without obstructing his right to a ca. sa. during the time the former may be in the hands of the sheriff. Ibid.

11. When an execution, issued by justice, runs into a different county from that in which issued, and is indorsed by another justice, under the statute, it is not necessary to render the execution evidence, that the signature of the justice issuing it should be proved.

Burgess & Davis v. Sugg, 2 S. & P. 341. 12. An execution does not loose its lien, by being suspended in its operation on particular property, by proceedings under the act of 1812, to try the right of property-but may be levied upon other estate of defendant for its satisfaction.

Mills, sheriff, v. Williams, 2 S. & P, 390.

13. Where A & B, being obligors in a bond, given under the act of 1812, (on a claim to property levied on) on the property having been found subject to the execution, paid the judgment obtained against their surety on the bond; and, afterwards, when the same property was levied on under other executions, procured the issuance of an execution on the judgment, on which that had issued, upon which the right of property was tried and had it levied on the same property, and it was sold under all the executions-held that the proceeds were to be applied to the benefit of the execution paid off by A & B. Ibid.

14. Under an execution from justice of the peace, in our State, the life estate of a defendant, in real estate, may be sold, as, also, the estate of a tenant in common, in default of personal property.

Mendenhall v. Randon, 3 S. & P. 251. 15. An execution will not be quashed on motion, on a mere parol showing that it has been paid.

Clemans &McLellan, v. Prout & Brahan, 3 S. & P. 345. 16. An execution will be inforced for the benefit of a surety, who has paid it; but the fact must appear by evidence that the surety is to be benefitted. Ibid.

17. Money paid on an execution to the officer after its return day, or before the issuance thereof, will not be a satisfaction, and no motion can be sustained against sheriff, or an action maintained against his sureties.

Barton v. Lockhart, 2 S, & P. 109.

Bobo & Johnson v. Thompson, 3 S. & P. 385.

18. Nor will payment of any thing but money to an officer be considered as satisfaction of an execution.

Ibid.

19. The interest of a mortgagor may be levied on and sold under an execution. McGregor & Darling v. Hall, 3 S. & P. 397. 20. At common law an execution bearing date (though by relation back to the first day of the term) before defendant's death, may be acted on by the sheriff, without making the personal representative a party; but if such representative is made a party, it must be done by sci. fa., or the execution it seems, would be void. Collingsworth v. Horn, 4 S. & P. 237. 21. If no execution issues within a year and a day from rendition of the judgment, or if not sued out before the death of a defendant, an execution taken out would be irregular, except by sci. fa.—semble.

Ibid.

22. When an execution however, is regularly sued out, it may be regularly continued by alias, &c., although defendant may die during such time, without revival by sci. fa.; for when the alias or pluries is regularly sued out, the lien of an execution is kept alive.

Ibid.

23. When, however, alias or pluries executions are not regularly issued, the rights of third persons obtained in such intermediate time, will destroy the operation of the lien as to them.

Ibid.

24. When execution issues after the death, on a judgment obtained before the death, though it might be irregular, yet it is not void but voidable only, and cannot be questioned by a stranger. Ibid.

25. When an execution has been superseded by the order of a chancellor granting an injunction, and upon a hearing, the injunction is dissolved and bill dismissed; an appeal from this decree, and the execution of the usual bond, do not revive or continue the injunction, so as to supersede the execution. Garrow v. Carpenter & Hanrick, 4 S. & P. 336.

26. Nor in such case, when the execution is taken out while the appeal is pending, will the court on petition award a supersedeas.

Ibid.

27. The power of the court to quash executions is not limited to periods

prior to their return, but such execution may be quashed after their return, especially if they still have virtue.

Isaacs & Bagley v. Judge County Court Jefferson, 5 S. & P. 402, 28. When an execution had been returned by the proper officer "satisfied," the clerk, on the ground of mistake, cannot issue a new execution, in the same case, without the action of the court being first had thereon.

Harkins v. Clemens, 1 P. 30. 29. A mere equity of redemption in personal property unaccompanied with possession in the mortgagor, cannot be reached by execution, and made the subject of a levy and sale.

Perkins & Elliot v. Mayfield, 5 P. 182. 30. The lien of executions in the hands of a sheriff, is not divested by a subsequent levy and sale by a constable of defendants effects, notwithstanding the statute 1828. Harrison v. Marshal, 6 P. 66.

See Judgment.

EXECUTORS AND ADMINISTRATORS.

I. OF THE ACTION BY AND AGAINST EXECUTORS AND ADMINISTRATORS
OF THE PARTIES THERETO; OF THE BOND AND SECURITIES.

II. TO WHOM ADMINISTRATION will be GRANTED, AND OF THE RESIGNA-
TION; OF THE POWERS AND OBLIGATIONS OF EXECUTORS AND AD-
MINISTRATORS.

III. OF THE ADVERTISEMENT; OF THE PRESENTMENT OF CLAIMS; OF SET-
TLEMENT OF ACCOUNTS, AND OF SALES BY REPRESENTATIVES.
IV. WHAT SHALL BE DEEMED Assets, and WHEN EXECUTOR OR ADMINIS-

TRATOR WILL BE HELD LIABLE IN THEIR INDIVIDUAL CHARACTERS
FOR A DEVASTAVIT OR OTHER CAUSE.

I. Of the Action by and against Executors and Administrators;-Of the Parties thereto;-Of the Bond and Securities.

1. Administrator declaring upon contract made with him as such, need not make profert of letters of administration.

Caller v. Dade, A. R. 20. 2. Note payable to two executors, if one die, the right of action is solely in the survivor, and the executor or administrator of the deceased executor cannot join. Waters v. Creagh & Shields, A. R. 128. 3. On a note payable to administrator, the right of action follows the administration, and the administrator, de bonis non, may sue. Caller ex'r. v. Boykin & Basset, A. R. 206. 4. Action cannot be continued against an administrator after he has declared the estate insolvent. See Statute.

Colbert, adm'r. v. Chandler, A. R. 254. 5. An action cannot be sustained against an executor in his representative

character, so as to authorize a judgment de bonis testatoris, on a contract made by him, nor can a judgment de bonis propriis, be rendered in such an action. Baldwin v. Stebbins, A. R. 180.

6. A creditor cannot sustain an action against an executor after the estate has been declared insolvent, until the county court, or the final report of the commissioners shall have declared the proportion in which the claims are to be paida Malone v. Gaines, A. R. 317. against another upon an express Phillips v. Phillips, 1 S. 71.

7. One executor may maintain an action promise.

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8. To an action by the administrator with the will annexed, appointed in this State, the defendant pleaded there was an executor appointed by will in South Carolina where the testator died; that he proved the will, took possession of all the property, &c., that he was in this State, and under no legal disability. The plea held good.

Gayle & Pitts, adm'rs. v. Blackburn, 1 S. 429. 9. The plaintiff replies that the property in dispute was, and yet is, in this State-within the jurisdiction of its courts, and that it never came into the possession of the executor in South Carolina-that the letters were granted on a copy of the will proved in South Carolina, with the knowledge and assent of the executor, who never proved the will in this State, and that the grant of letters is unrepealed-replication held insufficient. Ibid.

10. When there are two executors, to make them parties to a suit, process must be served on both. Jones' ex'rs v. Wilkinson, 3 S. 44. 11. In trover against administrator, the statute of limitations does not begin to run, until administration granted, when defendant acquired the properJohnson adm'r. v. Wren, 3 S. 172.

ty

after death of intestate.

12. In an action by one administrator on a decree rendered in another State in favor of three-held sufficient, if declaration averred that the other two had been dismissed. Green v. Foley, 2 S. & P. 441.

13. In such suit it is not essential to aver that the plaintiff's intestate had, at the time of the death, no known place of residence in this State, and that no letters of administration had been sued out here. Ibid.

14. When a suit is brought against administrator for goods &c., the declaration not shewing that they were for funeral expenses-held a good plea, puis darrein continuance, that during the pendency of the suit, the estate had been returned insolvent; and that a replication, not averring how much of the demand was for the funeral and last sickness, and whether of sufficient amount to give court jurisdiction, was not good.

Fennel, Davis & Co. v. Patrick, adm'r. 3 S. & P. 244. 15. An administrator de bonis non, cannot sustain an action at law against the representatives of a former administrator, to recover money received by the latter in the course of his partial administration, and not accounted for. Chamberlin, adm'r v. Bates, 2 P. 550.

16. The authority of such an administrator, embraces only such of the personalty of the first descedent as remains unadministered in specie, unaltered, or unconverted by his predecessor.

Ibid.

17. An administrator within six months after grant of letters, cannot be summoned as garnishee, and judgment rendered against him thereon. Presnall v. Mabry, 3 P. 105.

18. One who is administrator in right of his wife, does not have his character so changed by his decease, as to render it necessary to revive proceedings in equity commenced against them jointly, by a supplemental bill, charging him as executor de son tort, Draughan v. French, adm'r. 4 P. 352.

19. The plea of non-assumpsit to an action by one as administrator, admits the plaintiff's right to sue in that capacity.

Worsham v. Goar, adm'r. 4 P. 441.

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