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Howell vs. The State of Georgia.

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an intent, on his part, to commit a felony on the person of the defendant. Whether the evidence was sufficient to excite the fears of a reasonable man, or only a bare fear, that an attack would be made on the defendant's person, by Dill, was a question for the jury to decide. The evidence was competent to show the animo of the defendant, the circumstances under which he acted. If it had been shown that the threats did not come to the knowledge of the defendant, then, if proved to have been made, they would constitute no justification for him. The error consists in not permitting the whole of the facts, in relation to the threats, to have been proved to the jury. All we can say is, that the question propounded to the witness, as it appears on the record, was a legal and competent question. What effect the answer would have had with the jury, of course we cannot know. All we decide is, that on a trial for murder, or on a trial for an assault with an intent to murder, it is competent, under the provisions of our own code, for the defendant to ask a witness if he did not know that the deceased, or the person assaulted, made any threats to drive the prisoner from the place, or take his life. In the case of The People vs. Rector, 19 Wendall's Rep. 569, evidence of threats was held admissible, made a week previous to the transaction, by other persons than the deceased, who had broken into the prisoner's house, and treated the inmates badly, and who had threatened to return some other night soon after, and break in again, if they were not admitted. Although the threats were not made by the deceased, yet the testimony was offered, and held admissible, to show that the prisoner had reason to apprehend violence upon his house at the time the deceased and his companions came there, and that was his reason for using so much force as he did. Mr. Justice Cowen, in delivering his opinion, says: "The lightness of a relevant circumstance is no argument for withholding it from the jury. In the prosecution of a crime so essentially the creature of intent as murder, every thing pertinent should be submitted to the jury, from which they may infer an absence of malice." Whether the circumstances under which the threats. were made by Dill, "to drive the defendant from the place or take his life," we e such as to excite the fears of a reasonable man, and to induce the defendant to apprehend violence to his person, so as to justify an attack upon the party making them, was a question for the jury, under the law; and if not a justifica

Oglesby vs. Gilmore and others.

tion under the law, it might, in their judgment, have rebutted the presumption of malice on the part of the defendant, which is a necessary ingredient to constitute the offence with which he was charged.

Let the judgment of the Court below be reversed, and a new trial granted.

No. 8.-GEORGE J. OGLESBY, plaintiff in error, vs. Wм. W. GILMORE, et al. defendants.

[1.] At Common Law, an administrator de bonis non, is entitled only to the goods and effects which remain unadministered, in specie, and to the debts due to the intestate, unpaid.

[2.] A sale of negroes under an order of the Court of Ordinary, is an administration as to them, which will charge the administrator and his sureties, and vests the note taken for such sale in the administrator.

[3.] If such note so taken, be made payable to the administrator as such, it is only adescription of the person; he may sue upon it in his own name, and if he sue on it as administrator, that is only a descriptio persona, and may be rejected as surplusage.

[4.] A judgment recovered by an administrator, is a debt due to him in his personal character, upon which suit may be brought in his own name.

[5.] Under the Act of 1845, an administrator de bonis non, may call his removed predecessor, or his representatives, if he be dead, to account touching the entire administration of the estate, and the removed administrator is liable to him, as at Common Law he was liable to creditors and distributees. [6.] Where afund is in the hands of the Court, raised upon a judgment in favor of a removed administrator, upon which he sets up a claim on account of advances, the Court cannot, on motion, direct it to be paid to the administrator de bonis non, but he must file his bill, that proper issues may be formed, and a decree be had, covering the rights of all partics interested in it.

In Equity, in Lee Superior Court, before Judge WARREN, May Term, 1848.

The facts are fully embodied in the opinion of the Court.

HINES & HINES, VASON, HOLT, and CRAWFORD & DUDLEY, for plaintiff in error.

Oglesby vs. Gilmore and others.

SULLIVAN & BROWN, for defendants, cited:

4 Mass. 611. Toller, 448. 1 Term, 487. .3 East, 104. 1 E. C. L. R. 446. 1 Ala. 206. 2 Porter, 550. 2 Wms. Ex'rs, 117. 1 Salk. 316, 323. 5 East, 150. 1 Kelly, 78.

By the Court.-NISBET, J. delivering the opinion.

The facts of the case are as follows: Oglesby, the defendant, was administrator upon the estate of a man by the name of Johnson. Under an order of the Court of Ordinary, he sold certain negroes, and the complainant, Mrs. Johnson, who was the wife of the intestate, and one of his distributees, became the purchaser, giving her note, payable to Oglesby as administrator, for the purchase money, with the other two complainants, John S. Johnson, and William W. Gilmore, her sureties. When the note fell due, suit was brought upon it in the name of the defendant, as administrator, and carried to a judgment; execution issued on the judgment, and the negroes of the complainant, Mrs. Johnson, were levied upon and advertised to be sold. Whereupon these complainants, to-wit, Mrs. Johnson, John S. Johnson, and Wm. W. Gilmore, the defendants to the judgment, and who are all also distributees of the estate of Oglesby, intestate, bring this bill, and pray an injunction against the farther progress of the judgment and fi. fa. charging that effects, over and above said judgment, have come to the hands of the administrator, sufficient to pay all the debts, and with that, to leave a balance for distribution large enough to make the shares of the complainants therein equal to the amount of the judgment, which shares they offer in payment of it, and ask to be so allowed by a decree. They also charge Oglesby with a devistavit, and pray that he may account. Oglesby answered the bill, and denying fully the charges therein, sets up a demand in his own right, for advances made for the benefit of the estate, and claiming that the whole assets are not more than sufficient to pay the debts, his own included. Whereupon the injunction was dissolved. Pending the bill, and before a hearing, Oglesby was dismissed from the administration, by judgment of the Superior Court, upon appeal from the Court of Ordinary, and William W. Gilmore appoined administrator de bonis non. The bill being

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Oglesby rs. Gilmore and others.

amended to this effect, the Chancellor appointed a receiver to take charge of said judgment, and proceed with its collection. He collected the money, and it being in his hands, Oglesby moved the Court that it be paid to him, which motion was resisted by the administrator de bonis non, who, by counsel, appeared in Court, and claimed that the money raised upon the judgment, was effects unadministered by his predecessor Oglesby, and of right passed to him, as the now sole and legal representative of the estate. The Court ordered the money to be paid to the administrator de bonis non, and upon that order Oglesby predicates er

ror.

The Circuit Judge held, that inasmuch as the original note, out of which this fund grew, was made payable to Oglesby as administrator, and suit was brought upon it in his name as administrator, it was identified as the property of the estate, and being administered, passed to the administrator de bonis non. Against this view, it is contended by the plaintiff in error, that the sale of the negroes, by order of the Court, for which the note was given, was an administration of those negroes, and that Oglesby and his security became liable for the amount of the sale, and the note and the money collected thereon was individual property. The plaintiff in error contends, farther, that if by law the admininistrator de bonis non is entitled to this money, yet he, as such, was no party to the cause pending, and that it was not competent for the Court, upon motion, merely to direct it to be paid to him.

[1.] At Common Law, we think the Court was in error. The property, (the negroes) was fully administered by a legal sale; the administrator and his sureties became liable for the amount of that sale, and the note thereby became his, in his own right. Nothing at Common Law passes to the administrator de bonis non, but the goods and personal estate remaining unadministered in specie, and susceptible of identification, and all the debts due and owing to the testator or intestate. So far as the estate has been administered, by the first administrator, the second is concluded. 1 Kelly, 80. 1 Williams' Ex. 656, 7. 1 Salk. 306. Bac. Ab. title Exr's, B. 2. 1 Gill & Johns. 270. 5 Randolph, 51. Freem. 462. 2 Lev. 10. 1 Ventr. 275. 2 Leigh, 512, 525. 9 Leigh, 580. 3 Kelly, 261.

[2] In Thomas rs. Hendrick, this Court has determined, that "when lands or negroes are sold by an order of the Court of Or

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Oglesby vs. Gilmore and others.

dinary, or perishable property by the act of the party himself, they are administered, so far as the successor is concerned." So, upon the authority of this Court, it is settled that the sale of the negroes, in this case, by Oglesby, the first administrator, was an administration as to them-it was a change or alteration of the property, and therefore, the administrator de bonis non, can neither recover that property in specie, from the purchaser, nor can he go upon the previous administrator for its proceeds. If the sale of the negroes was an administration as to them, the administrator and his securities became bound for the amount of the sale, to the creditors and distributees, and what he got for them in money and notes, belongs to him individually.

If, indeed, there is fraudulent collusion between the administrator and the purchaser in the sale, the administrator de bonis non, might then pursue the property. Even legal acts, done in course of administration by an executor de son tort, binds the rightful executor and alters the property. Parker vs. Kett, 1 Ld. Raymond, 661. S. C. 12 Mod. 471. Coulter's case, 5 Co. 306. Plowd. 282. 1 Williams, Exr's, 158, 9. The same is said to be true of an administrator's acts, under a grant of administration void, by reason of there being a will and rightful executor. In Boyd vs. Sloan, through Ch. Harper, the Court of Appeals of South Carolina, say, "The executor or the administrator is the legal owner of the goods of his testator or intestate, and if he sell them on a credit, it is his personal demand, and he is liable to creditors or distributees." 2 Bailey's R. 311. In all such cases there is no contract with the intestate, he being dead; the promise is to the executor or administrator. In Beassington vs. Ault, three executors out of four, named in a will, ordered the sale of goods belonging to their testator, and afterwards sued for the amount, without styling themselves executors, and without joining the fourth executor, and it was held that they might recover. The Court saying, "The case referred to is distinguishable from the present. In that case the plaintiffs declared as executors, and when they do that, all must join. But that expression was referable to the form of the action, which was an action expressly by executors. In such a case, it is clear that all must join, because they derive their interest under the will, and not under the probate, and the right to sue is equal in all. But when the management is left to three, and those three enter into a con

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