1. CH. 29 Art. 8. ART. 16. 1 Nott & Mc Osgood v. Manhattan Co. 3 Cowen, 613, 23. of the deceased administrator. An administrator on an estate, acts in auter droit in his transactions with the debtors and creditors of it, but in settling his own account with the judge, he acts in his own right; this right and duty passes to his executor or administrator, and if necessary to sue the bond of the deceased administrator, his executor or administrator must be sued, and not the administrator de bonis non; his duties are limited to the estate not administered upon. See Toller, 492. § 1 con. Pleadings and evidence. Only case of simple contract on which debt does not lie against the administrator, is where the intestate could wage his law. 8 Wheat. 672, &c. not in cases of notes and bills, &c. Com. D. Adm. B. 14; Pleader, 2. W. 45, tit. 2 D. 2; 1 Chitty's Plead. 106; Chitty on bills 426; 2 Saund. R. 74, note 2 by Wms; Norwood v. Reed, Plowd. 182; Cro. El. 557. Wager of law is excluded in the U. States by the constitution of the U. States, &c. in which it is declared, 'that in all suits, at common law, where the value in controversy exceeds $20, the right of trial by jury shall be preserved. The executor of an executor represents the first testator, and Cord, 77, 78. when an action is brought against the executor of an executor for a debt owed by the testator, he may be declared against as executor of the first testator, without noticing the first executor, but it is the most correct to notice him; was debt on a judgment. Error from the supreme court to the court of errors. Assumpsit by said Company, on notes against Walter, Franklin, Osgood, and others, heirs and devisees of Maria Osgood; the main question was, if her deeds of real estates to her daughters were fraudulent, as to the plts. and other creditors. Her executors petitioned the surrogate for license to sell her real estate to pay debts; their petition was accompanied with a sworn account of the personal estate; this the supreme court admitted to prove her insolvency, but the court of errors contra, and held the acts or admissions of executors are not evidence against the heirs or devisees: nor to show the insolvency of their ancestor, (their mother,) when she conveyed the real estate in question to certain persons, in an action by a creditor against her heirs and devisees, seeking to show that such conveyances were voluntary and fraudulent, whereby the subjects of them become assets in the deft's. hands, and 1 Munf. 437. 3 Greenl. 174, 177. 3 Greenl. 250 An administrator has trespass for an injury to personal property, committed after the intestate's death, and before administration granted, and if described in the writ as the intestate's property, and not saying of the administrator, it is well after verdict. The executor may sue in his own right, on a contract made, 256, Carlisle v. or for a tort committed, after the testator's death: 2. In trover Burley. the property is not changed till judgment. 2 N. H. Rep. 71 An administrator has an action to fore- 1. CH. 29. close a mortgage made to the intestate. 2 con. An administrator recovers judgment, he may bring debt on it in his own name and need not declare as administrator. 16 Mass. R. 71-73. $ 3 con. If two administrators sue, and one a feme sole and pending the action, she marries, it does not abate the action; the other proceeds alone. 17 Mass. R. 341, stat. Feb. 6, 1784, s. 19 (c. 24)-this is Mass. statute law. Art. 16. Con. If the deft. be sued as executor when he is administra- 2 N. H. Rep. tor; or if the suit be commenced within a year from her ap- 475. pointment, it can be pleaded only in abatement. 10 con. If an executor bring an action on a promise to the testator, barred by the act of limitation, and there has been a 3 Har. & Mc promise, by the deft. to the executor, he must declare on it. In H. 152, 153. this case it may be understood that the executor or admininistrator may renew the debtor's promise to the executor or administrator of the creditor, that was made to him, and on this renewal the plt. executor may specially declare and take the case out of the statute of limitations, otherwise barred by it; but the plt. executor cannot so release, as to be a witness to prove the renewal, as his liability to costs will continue. See Ch. 39 a. 5. s. 14; 3 Greenl. 17-21. But an administrator cannot revive a debt due to himself from the intestate, barred when he died, by said acts. 2 Pick. R. 2 N. H. Rep. 567, Richmond administrator petitioner. 215. An administrator may plead never promised within 6 years; and if any fact brings the case within the statute, it must be replied. A promissory note is bona notabilia, where the debtor p. 292, Thomplives. son v. Wilson. 17 con. If an administrator have assets to pay a debt, and suffers it to be unpaid, and in consequence of his neglect it is sued for and recovered with interest and costs, he cannot charge such Callaghan v. Hall, 1 Serg. interest and costs to the estate; and if he ship the intestate's & R. 241. effects on a trading voyage, he is liable for any loss that may arise out of the transaction. 19 con. Under the plea of plene administravit, the existence of debts of a superior nature cannot be given in evidence, they must be specially pleaded. The administrator sues a bond to the intestate-plea non est factum; plt. need not produce his letters of administration. 27 con. Same, 15 Mass. R. 374. Sullivan administrator, v. Holker and Porter, promises to a former administrator. pp. 364, 356. 34. Where an executor or administrator pleads a false plea, the judgment is de bonis testatoris and non de bonis propriis, &c. Lansing v. and under the statute, if sufficient goods and chattels cannot be Lansing, 18 found, then of lands and tenements, &c. If one of several ex-Johns R. 502; ecutors or administrators admits a debt of the deceased to be due I. CH. 29. this does not conclude the others, but they may show it is paid. James v. Hacklay. Art. 16. Gardner v. Johns R. 188. Osterhout v. § 35. A, one of three executors owed the testator a debt by simple contract, when the will was made. He refused to act, and the other two proved the will and administered. A afterwards gave a bond to the two acting executors for his said debt; and above a year after assumed the office of executor, and cancelled the bond. Held, it was given for a valuable consideration, and to the obligees in their private capacities, the addition of executors, &c. being merely words of description, and that A's act of cancelling the bond was a void act; the two executors recovered. $36. Assumpsit against an administrator; deft. pleaded non asHardenburgh, sumpsit-non assumpsit infra sex annos and plene administravit. Verdict for the plt. on the two first pleas, and judgment of assets, quando acciderint, &c. Verdict for the deft. on the third plea, and judgment for him for his costs. 19 Johns R. 266. Troup v. the Johns R. 33. ART. 19. 1 Hop. Ch. R. Whorter, &c. v. Benson. 37. Though an action does not lie by an executor or administrator for the fraud of the testator or intestate, that does not benefit the assets; yet it lies against his representatives on a contract fraudulently performed by him. 38. Debt on administration bond in two actions: the People v. Mc Donald and Dobbs impleaded with Sarah Haviland; same v. same, 1 Cowen, 189-193: 1. Record amended where by mistake the judgment was de bonis propriis, where it should have been de bonis testatoris si, &c. et de bonis propriis si non, &c. Actions were under statute 1 R. L. 447. to recover two several claims in favor of the same plt. 2. Court ordered them to be consolidated : 3. Assigning for breach not filing an inventory, &c. within six months where not shown the relator suffered any injury from the omission, is improper: 4. This assignment ordered to be stricken out of the declaration: 5. The relator being within the jurisdiction of the court, no stay of proceedings till costs be secured: 6. They may be enforced by attachment. See ch. 149. a. 2. s. 44: 7. The plt. had leave to declare de novo. 10. Executor's compensation in New York. The statute of 1817, authorizes the court to make an allowance to the executor, in certain proportion, but not any special allowances: 2. There is no fixed rate for an agent: 3. One appointed by the executor is entitled to a compensation for his services, whether the will authorize his appointment or not, and it must be borne by the testator's estate: 4. The object of the act is to give one reward for all services, and that may be ascertained by computation on one species of service only, that is, on receiving and paying money. Art. 19. § 11. Probate powers in New York, now and formerly. I. CH. 29. The probate and prerogative courts of the colony were formed on the model of the ecclesiastical courts of England, as to the subjects of their jurisdiction, but it does not appear they were bound to follow the practice of those courts. Since the 1 Hop. Ch. R. Revolution the probate courts in New York have been estab- Vanderkeyden lished and regulated by statutes, the last enacted March 31, v. Raid. State, as in the others, statutes are often 1823; but in this revised and altered. testator's sanity. 408-415, The question in this case was as to the Ketchum ex'r. 12. The plt. declared on a note and for money lent in 91. On the true principle above stated, and 5 D. & E. 234, see ch. 9. a. 19. s. 9, where near all the distinctions are taken and cases cited, showing how executors and administrators must sue in auter droit, or not; and 4 Cowen, 550-552, and many cases cited. CHAPTER XXX. FACTORS. 3. con. If a general shipment be made to a factor to secure to him his advances and other just charges, he has a ART. 1. I. CH. 30. lien therefor only on that, and subject to such lien the owner Art. 1. may dispose of the property as he pleases. 3 Mason, 334-341, Con. If the principal instruct the factor to sell produce for cash only, and he allows the buyer to take it away without paying 1 Nott & Me the money at the time of the sale, who absconds immediately, Cord, 517-527, the factor is liable for the amount, though a usage is proved among the factors of allowing to purchasers seven or fourteen days to pay, where the sale has been for cash, for no usage will authorise a departure from positive instructions of the principal they are the agent's law. This usage had existed in Charleston forty years. Mr Justice Cheeves, contra. Barksdale v. Turner. 4 Barn. & Cres. 547. Leverick v. 9. How a factor may sell to pay his own debt. The plt., the principal, brought assumpsit for the goods sold and delivered. Plea, 1. General issue: 2. In bar for said goods, &c. were with the plt's. consent so sold and delivered to the deft. by John Summers, agent and factor of the plt., and in Summers' own name, as the true and sole owner of them, and the deft. did not know the goods were the plt's. nor did he appear; that when said goods were sold and delivered Summers was indebted to the deft., and still is, in more than the value of the goods, and that the deft. is ready and willing to set off and allow the plt. the value of the goods out of the monies so due and owing from the said Summers. Held, on special demurrer that the plea was good. One objection to the special plea was, that it amounted to the general issue: another, the debts not of a kind to be set off. As to the first objection, cited George v. Clagett, a. 8. s. 5; Rabone v. Williams, 7 D. & E. 360, n.; Boot v. Wilson, 8 East, 311. Off-set, same and other cases, as Baring v. Corrie, 2 B. & A. 137. As to the general issue, see ch. 178. a. 5, &c. Lien, 5 Binn. 441-538. 10. Assumpsit to recover the amount of two several bills of exchange, each drawn by Rea & Butler, in Savannah, on Tho. C. Butler, of New York, at sixty days sight, both payable to the plt., remitted to him by the deft. for the proceeds of goods consigned to them by the plt. for sale on his account, which they sold at a credit, as his factors, under a commission to guaranty the 'sales. The drawee was one of the drawers: they failed: facts stated. In this case many points were decided, as 1. A factor, under a general power, will not be responsible for losses, if he acts to the best of his abilities, without breach of orders, gross negligence, or fraud. If there be a loss by his giving credit, on a sale or making remittance, he is responsible, unless it appears he used ordinary diligence to ascertain the discredit or insolvency of him who occasions the loss by his failure: 2. When directed to remit he need not in general inquire into the credit of the drawee: 3. If circum |