Mapp vs. Phillips.

enlarge the authority conferred by the letter, were incompetent evidence for that purpose, and have only here to add that from this source, no general authority can be derived. Mapp, the plaintiff in error, stated to Griswold, "that he had given to Bishop, a power of attorney to sell this slave, that he had heard nothing from him since-was going to Macon to inquire about Bishop-and knowing that he had been in the employment of Griswold, had stopped there to inquire, and (finding Griswold ignorant of his whereabouts) feared he (Mapp) would lose his money."

If the written authority, in evidence, will answer the description given by Mapp in this conversation of the power to Bishop, he must be understood to refer to that-unless there be other proof that he had actually given some other authority in writing touching this business.

The

The letter to Armstrong is certainly, not in form, a technical power of attorney. But the law does not exact technicalities in such matters. It requires only a clear, distinct expression of the authority intended to be conferred. power intended here, being a special limited one, was well set forth in a letter to the only person to whom the writer gave the agent authority to sell. Still it was a power of attorney to sell the negro. Circumstances did not require more detail in this conversation than Mapp used. It does not appear that he knew, then, of the sale by Bishop to defendant in error. Indeed the reasonable presumption is that Bishop had left him wholly ignorant of his acts and doings, and it is but fair to infer that he then supposed Bishop had sold to Armstrong, as authorized, and made way with the purchase money, and hence his fears that he would lose it. To hold that, in this conversation, Mapp referred to some other power of attorney, would be a forced construction of language. So that, we do not find in this, evidence of a general power to sell.

The remaining question is that of ratification.

The evidence of it is said to be found, 1st, in the evidence of Griswold; 2d, in that of Grier; 3d, in his long acquies

1

cence.

Mapp vs. Phillips.

It is conceded that there has been no direct positive ratification. It is arrived at inferentially.

To infer ratification, either from declarations or acts, it must appear affirmatively, that at the time of making the declarations, or doing the acts, the principal knew that the agent had performed the act, claimed to have been ratified. It does not appear that at the time of his conversation with Griswold, plaintiff in error knew that Bishop had sold the slave to defendant in error; indeed, the contrary would seem to be highly probable. We, therefore, find no evidence of ratification in Griswold's testimony.

Is it to be found in Greer's testimony? All that bears upon this question is this, "witness saw Mapp in Americus. and in Macon, looking for Bishop, to get the money for which he sold the negro to Cox; that Mapp also told witness he went to Alabama, partly on the same business; that he (Mapp) had authorized Bishop to sell the negro to Gen. Armstrong; and that if he could get the money which Cox paid Bishop for the negro, he would be satisfied." In this conversation, speaking of the authority he had given Bishop, he states, in entire consistency with his written authority, that he had authorized him to sell the negro to Gen. Armstrong. This was equivalent to saying that he had not authorized the sale actually made; but he adds, if he could get the money paid to Bishop he would be satisfied. At most it is only a declaration that he would ratify the sale on a certain condition. This, and any efforts he may have made to find Bishop, may be put to the account of a desire to avoid litigationto submit to a wrong on certain terms; and was advantageous to the defendant in error, who should not be permitted to wrest such declarations and acts to the prejudice of plaintiff. There is nothing in it which amounts to, or indicates the intention of, ratification.

Beyond this there is no evidence of acquiescence other than the lapse of time, between his knowledge of the sale and the commencement of the action. It appears that about three months intervened. It does not appear that any term of any court, having jurisdiction of the case, had been allowed to

Smith vs. Griffin.

pass. There is no settled limitation of time within which. suit must be brought, to avoid the legal inference of ratification. The authorities say that acquiescence, or non-action, more properly speaking, must not extend beyond a reasonable time. Circumstances must always be looked to to determine what is a reasonable time. We think that, under the circumstances of this case, the action was commenced within a reasonable time.

Our opinion is that the verdict is contrary to the law and the evidence, and that, for all the reasons assigned in this opinion, the Court below erred in not setting aside the verdict and ordering a new trial, and we therefore reverse the judgment.

Judgment reversed.

SMITH US. GRIFFIN.

1. Upon the trial of a case in equity, brought by a legatee against an executor, for account and distribution, if it appear that the inventory furnished by the executor to the appraisers shows only the aggregate of debts due the estate, without the names of the debtors; and if the appraisement of personalty (there being realty also) amount to a large sum, and subsequent returns of the executor (not being made annually) show only expenditures and no receipts; and if the answer of the defendant be vague and unsatisfactory, after the lapse of many years, great latitude should be allowed the complainant in offering evidence to charge the defendant. All evidence (not positively illegal) tending even remotely to elucidate the case, should be admitted.

2. If an executor sell the effects, assets or choses in action of the estate without an order of the Court of Ordinary, or other lawful authority, at private sale, he is liable for the real value, if that be greater than the price for which he sold. And in the case of a chose in action, thus sold, if the real value cannot be ascertained, his liability would be either for the amount of the sale, or the sum appearing upon the face of it, to have been due, as the one or the other might be the larger

sum.

3. In such a case as that stated in the first syllabus, it is error in the Court to charge the jury that, after having put the inventory of choses in action in evidence, the complainant must "go farther, and show the

Smith vs. Griffin.

money due upon those choses in action to have been collected or collectable."

4. In such a case it is error in the Court to charge the jury "that the returns of the defendant, having been allowed by the Court of Ordinary, and thus adjudged by a court of competent jurisdiction, are prima facie evidence for the defendant, and will be conclusive, unless reversed or impeached for fraud or other cause." Returns made by an executor or administrator appearing, upon inspection, to have been made contrary to law, or to be fraudulent, do not make a prima facie case for him, and are to be taken strongly against him.

5. A judgment of a Court of Ordinary allowing a schedule of debts returned by an executor or administrator as desperate, is prima facie evidence for him, and will, of course, be conclusive on a trial of a bill for account and distribution, unless rebutted. But it is competent for the complainant to prove in rebuttal that any debtor named in such schedule was solvent, and that by the use of due diligence payment of the debt might have been enforced. Such evidence, if credible, is sufficient to shift the onus and require the defendant to show why the debt was not collected. In such a case, it is the province of the jury to determine, from all the evidence, whether or not the defendant shall be charged with the debt.

In Equity, in Dougherty Superior Court. Tried before Judge ALLEN, at the June Term, 1860.

On the 12th day of October, 1847, Thomas P. Smith filed his bill in equity in the Superior Court of Baker county, against Hardy Griffin, to which bill several amendments were made, in one of which amendments the complainant alleged that, owing to a failure on the part of the custodian of the records to find and give him access to said records, he did not ascertain and find out the frauds, wastes, devastavits, and mismanagements perpetrated by the defendant, and set out in the bill, until after the original bill had been filed, and that the frauds being undiscovered, the statute of limitations, or lapse of time, was not in his way so as to bar his recovery.

The bill and amendments embody the following allegations and charges, to-wit:

On the 4th day of February, 1819, Benjamin Smith executed his will in Laurens county, in which he directed that, after the payment of his debts, his executors should keep

Smith vs. Griffin.

the residue of his property together, for the support of his wife and children, until his oldest child should become of full age, when his or her distributive share should be given off to such oldest child; and that the residue of the property should be still kept together, until the next child become of age, and his or her share should be given off as before, and so on, until the youngest child should arrive at full age. Hardy Griffin and Britten Jordan were appointed executors by the will. In 1819 the testator died, and the will was proved and recorded in the proper office in said county of Laurens, by the said Hardy Griffin, who alone qualified as the executor of said will. The testator left five children, towit: the complainant Thomas P. Smith, James B. Smith, Eliza Smith, who afterwards intermarried with John Jordan, Mary W. Smith, who intermarried with Green H. Brazeal, and Nancy W. Smith, who intermarried with John Chapman. Mrs. Chapman afterwards died, leaving two children surviving her. Hardy Griffin took the charge and possession of the testator's estate, consisting of lands, negroes, stock of various kinds, household and kitchen furniture, money, notes and other choses in action, of the aggregate value of twenty thousand dollars, over and above the payment of all debts and charges against the said estate. Complainant, who, as one of the children of the testator, is entitled to one-fifth of the net proceeds of said estate, has, time and again, demanded an accounting and settlement from the said Hardy Griffin, who has failed to settle and account with the complainant, falsely pretending that the estate was insolvent, that nothing was due complainant, and that having made full returns and settlements with the Inferior Court of Laurens county, when sitting for ordinary purposes, he, the said Hardy Griffin, had. been discharged from his trust as executor of said estate.

The bill alleges that if the said Hardy Griffin has made any settlement, as he pretends, the same was unfair, untrue, and fraudulent, and that if he has been discharged from his trust, the discharge was obtained by fraud and imposition. upon the Court; that Griffin has lately admitted to E. H Platt, Esq., that there was one error in his account with said