20. An administrator de bonis non, may well maintain an action on a note given to his intestate for land, for which, intestate had given vendee his bond for title, and placed him in possession of the premises.

White v. Beard, 5 P. 94. 21. One suing as administrator de bonis non, should aver in declaration the death of administrator in chief. Cummins v. Edmunson, 5 P. 145.

22. In an action upon an instrument payable to the administrator of the estate, there should be an averment as to who was administrator when the note was executed; and that the note was executed to him by that name and description. Ibid.

23. At common law an action could not be maintained by executor or administrator, to recover damages for an injury done to either the person or property of the testator or intestate, for the action died with him; and the statute 1826, only authorized certain actions to be revived by the representatives, and not be commenced de novo. Blakeny v. Blakeny, 6 P. 109. 24. Citation to an administrator, calling upon him to show cause why judgment should not be awarded against him for the distributive share in an estate, must set out the proceedings had on the settlement of the estate. Welch, adm'r v. Walker, et ux. 4 P. 120.

25. By the marriage of a feme sole administratrix, the husband becomes joint administrator with her; and if the husband sue, or be sued as administrator, the wife must be joined :-but in cases where administrator may be charged in his own right, the action lies against the husband alone.

Williamson et al. v. Hill, 6 P. 184.

26. In such an administration the husband cannot urge against the claim of a distributee, the invalidity of the grant of administration, or the want of jurisdiction of the court making the grant, which the wife had sought, and both acknowledged by the acceptance an d exercise of the trust. Ibid.

27. Nor can a personal representative object to notice required in settlement of the estate, for the want of regularity, it not being intended for his advantage, but for the benefit of creditors and distributees. Ibid.

28. By mistake in the condition of an administration bond, it was written, "that if M. R. who was the deceased, should well and truly perform the duties of administrator." The mistake being apparent in the face of the instrument, it was held that this did not vitiate the bond, and that it might be declared in its proper form. Moore, et al. v. Chapman, Judge C. C.2 S. 466. 29. After settlement and decree by county court, requiring administrator to pay over a sum certain, a distributee may bring his action on the bond, and assign the non payment as a breach.

1bid.

30. And when the settlement is final, no refunding bond is necessary.

Ibid.

31. Executors are not entitled to exercise any powers as such, other than in the collection and taking care of the estate until they have given bond and taken the oath prescribed. Cleveland, et al. ex'rs v. Chandler, 3 S. 489.

32. Action of debt cannot be maintained on executor's or administrator's bond, to enforce a settlement of accounts, and the payment of a legacy, until a decree has been rendered by orphan's court.

Judge Madison County Court v. Looney, et al. 2 S. & P. 70. · 33. A mere settlement of accounts of the representative of an estate, whether partial or final, will not authorize a suit against the sureties on the bond, unless the settlement was followed by an order or decree of the orphan's court, specifying the sum due, and to whom to be paid.

Judge Limestone County Court v. French, 3 S. & P. 263. Judge Limestone County Court v. Coalter, et al. 3 S. & P. 348. 34. Before suit can be maintained against the sureties of an executor or administrator on the bond, it must appear that assets have been found in the

hands of the latter, and that the money alledged to be due cannot be recovered of them. Ibid. 35. The return of an execution, nulla bona against executor or administrator, will be sufficient to authorize a suit against the sureties on the bond.— semble. Ibid.

36. Suit cannot be maintained against the surety of an administrator on the bond, when it does not appear that a judgment has been rendered regularly against the administrator as such.

Faulk v. Judge Monroe County Court, 2 P. 538.

37. In debt on an administrator's bond, it is no valid objection to the declaration that it does not disclose that the assets which came into the hands of the administrator, were justly chargeable with the sum sued for, or that they were of value sufficient to discharge it after the payment of all claims entitled to priority. Thompson, Judge v. Searcy & Fearne, 6 P. 393. 38. Nor is it a good objection to a declaration that the names of all the plaintiffs in the judgment recovered against the administrator, are not" set forth.

Ibid.

39. But the sureties to an administrator's bond cannot be charged beyond the amount of assets which came to the hands of the administrator; and therefore in an action on the bond against the sureties, the jury must find not only for the plaintiff, but also to the extent to which the administrator has wasted the assets. Ibid.

40. Though the administrator may, when sued alone, be charged for a constructive waste, yet to authorize a recovery against his sureties, an actual devastavit must be shewn.

1bid.

II. To whom Administration will be Granted, and of the Resignation;-Of the Powers and Obligations of Executors and Administrators.

41. On a written undertaking by intestate to clear out of the land office, and transfer a certain tract of land, administrator cannot be compelled by the orphan's court to make title thereto.

Lacy, adm'r. of Thompson v. Sampson, A. R, 33. 42. Administrator may revive writ of error, and will be entitled to continuance thereon as in other cases.

Adm'r. Lewis v. Lewis, A. R. 35.

43. Property allotted to administratrix as distributee, not liable to an execution against goods, &c. of intestate. Lewis v. Lewis, A. R. 95. 44. The act of 1811, exempts executors and administrators from the liability of costs de bonis propriis. Adm'r Dancey v. Orton, A. R. 111. 45. It is error to render judgment against administrator de bonis propriis. Adm'tx Armstrong v. Johnson, A. R. 169.

Bowie's Adm'tx v. Foster, A, R. 264.
Ex'r Greening v. Brown, A. R. 353.

46. A purchase by an administrator at his own sale by auction under legal authority, is not void, per se, but is prima facie valid.

Brannan, et al. v. Oliver, 2 S. 47.

47. Nor will such a sale made in South Carolina be held void, though made without an order of court; the laws of South Carolina not being produced to show that such order is necessary.

Ibid.

48. Under the act of 1806, regulating the grant of administration to the

next of kin :-if there be no widow, the father is entitled to the administration, in preference to the sisters or brothers of the intestate.

Brown v. Hay & Germany, 1 S. & P. 102. 49. The statute 1822, authorizing sale by executor or administrator of the real estate, superseded the provisions of the act of 1803.-Semble.

Wylie & Gayle v. White & Leslie, 3 S. & P. 355.

50. An executor cannot by a resignation of his authority as such, avoid the rendition of such judgment and decrees against him as may be in regular progress, for assets unadministered at the time of resignation.

Thompson & Hayne v. Blackwell, 5 S. & P. 181. 51. A resignation of an executor would not, of itself, be good, if not filed in the clerk's office, but merely handed to the court, and no order taken upon it. Ibid.

52. Executors and administrators by virtue of their general powers as such, cannot make any contract in their representative character, which at law will bind the estate and authorize a judgment de bonis testatoris.

McEldry & Chapman, ex'rs, v. McKemie, 2 P. 33. 53. In an action, brought by the administrator of A against the administrator of B, for money received by the latter of the estate of A; the administrator of A is competent, in respect of interest to prove the payment by him of the money to B. Wiggins, adm. v. Taylor, adm. 3 P. 430. 54. In such case, it was held that parol proof of the receipt given by B for the money so received from A's administrator, might be made by him without the production of the receipt. Ibid.

55. When an administratrix marries, the husband, during their joint lives is invested with all the rights of an administrator, uncontrolled by the authority of the wife, so that a slave of the intestate sold by the husband as administrator cannot be recovered back by the wife, after his death. Pistole v. Sheet, 5 P. 64.

III. Of the Advertisement; of the Presentment of Claims; of Settlement of Accounts; and of Sales by Representatives.

56. When letters of administration were granted 15th May, 1824, and advertisement continued a proper length of time, being dated 25th, May, omitting the year, and stating they were granted 17th instant, and the date was proven extraneously to be 1824-the mis-statement and omission, immaterial. Acre v. Ross, adm. 3 S, 288.

57. Presentment of a claim to one or two representatives is notice to both. Ibid.

58. The statute of 1822, authorizing sales by executors or administrators of the real estate, suspended the provisions of the act 1803, semble,

Wiley & Gayle v. White & Leslie, 2 S. 331. 59. The County Court had no authority to order sale of lands, without proof that the representative had given the notice required by statute.

Ibid.

60. So the failure of the representative to give bond as the statute directs, held to avoid the sale of lands made by him. Those who act as trustees must pursue strictly the authority under which they act; or, else a sale made by them will be void, and a possession held under them tortious, and the property subject to the heirs for mesne profits.

61. The statute of South Carolina, which declares sales by administrators

made without an order &c. void-was intended for the benefit of creditors, legatees and distributees, and not for the security of representatives against their wrongful acts. Pistole v. Street, 5 P. 64. 62. And so when an administrator omits to give bond on a sale of real estate, according to law, the omission does not avoid the sale.

Wyman et al. v. Campbell et al. 6 P. 219.

the

63. When an executor or administrator seeks a settlement of his accounts, the law requires that the vouchers shall be presented to the judge of the County Court, who shall hear, examine and state them, and report them for allowance. The judge must cause notice of at least forty days, previous to further action on the accounts, to the end that all persons interested may examine, and, if necessary, prepare to contest them; and, in such case, record must show that the requisitions of the statute have been complied with, unless dispensed with by the appearance of the parties. When accounts have been audited, examined and stated, as the law requires, and allowed after due notice, the settlement is binding on all persons interested, and there is no authority for a re-examination.

Legatees of Horn v. Grayson, 7 P. 270.

IV. What shall be deemed Assets; and when Executors or Administrators will be held Liable, in their individual character, for a Devastavit or other cause.

64. A judgment by default, against an executor, and return of execution "no property found," are conclusive evidence of a devastavit to the amount of the judgment in a second action by the same plaintiff, against him in his individual capacity, suggesting a devastavit.

Garrow v. Emanuel, 3 S. 285. 65. And the executor in such an action cannot plead the insolvency of his testator's estate under the statute: his personal liability being fixed by the first. Ibid.

66. When an administrator, under an order of the court, sells the personal estate of his intestate at a public sale, on a credit of twelve months, the debts to be secured by bond and security-permits one of the purchasers to carry off a portion of the property without giving security, he renders himself liable for any loss, arising from the negligence.

Betts, adm. v. Blackwell's heirs, 2 S. & P. 373. 67. A decree of County Court, on final settlement with administrator, against such administrator for the balance which he has become liable to pay, in favor of "the estate or the legal representatives thereof," and awarding execution, is void for uncertainty. Ibid.

68. Under the statutes of this State, an order of the County Court, ascertaining a specific sum in favor of a distributee, is equivalent to a judgment of devastavit and establishes the fact of assets.

Judge Limestone, C'ty Court, v. Coulter, 3 S. & P. 348. 69. Debt suggesting a devastavit is maintainable on a judgment by default obtained against representatives of an estate, either before or after the issuance of a fi. fu. Burk v. Adkins, 2 P. 236.

70. A scire facias against executors or administrators, to show cause why execution de bonis propriis should not issue after judgment by default against the estate, is not allowable, on the bare return of “nulla bona," to an execution de bonis testatoris.

Bank State of Alabama, v. Hooks & Davis, 2 P. 270.

71. An administrator purchasing goods for the use and benefit of an estate, is personally responsible to the vendor, and an action for the price thereof lies against him in his individual capacity. Harding v. Evans, 3 P. 221.

72. The representative of an administrator is liable directly to a creditor or distributee for assets of an estate, wasted or converted by him.

Draughan v. French, adm, 4 P. 352.

73. An administration bond is forfeited, according to its legal import, when the administrator wastes the goods of the intestate to the prejudice of a creditor, yet no one can be regarded as a creditor for the purpose of subjecting the administrator to a personal responsibility, who has not first made out a title by recovering judgment, to be levied de bonis testatoris.

Thompson, Judge, &c. use, v. Searcy & Fearn, 6 P. 393.

74. When a judgment is thus recovered, an action may be well maintained upon the bond against the sureties, upon the allegation that the administrator has wasted more than equal amount of the estate, and this before a devastavit is fixed upon the administrator, by a judgment recovered against him personally.

Ibid.

See Citation. County and Orphans' Court. Detinue. Dower. Limitation of Actions and Non-claim. Parties. Set-off. Vendor and Vendee. Wills.

FALSE IMPRISONMENT.

Action for False Imprisonment-Pleas, Not Guilty & Justification.

1. Plaintiff proved, that when he was hand-cuffed, defendant stated that he had directed it. The defendant was permitted to prove that in the same conversation, he stated that it was in virtue of a warrant.

Rodgers v. Willson, A. R. 407.

2. Evidence to show that there was good ground for suspecting plaintiff of offence for which he was arrested, good in mitigation. Ibid. 3. A party who procures an arrest to be made, is liable in this action though not present aiding and abetting.

Clifton v. Grayson, 2 S. 412. 4. It is no plea of justification, that the defendant had reason to believe the plaintiff a murderer, whose description he answered, such facts can only go in mitigation of damages. Sugg v. Poole, 2 S. & P. 196.