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REPORTS

OF

CASES ARGUED AND DETERMINED

AT JUNE TERM, 1850.

BEATTIE, ADM's, vs. ABERCROMBIE ET ALS.

E

1. This court will not undertake to say that the chancellor has erred in

refusing to suppress a deposition, when it does not appear by the record that the facts on which the motion was predicated were es

tablished before him. 2. A motion to suppress a deposition for an irregularity in taking it

comes too late, when made for the first time at the hearing of the cause. 3. Where a party, without objection, permits secondary evidence to be

given against him in the primary court, his assent will be presumed,

and he cannot be heard to complain of it in an appellate tribunal. 4. The executor or administrator, as respects the personal estate of the

deceased, is the only representative that the law will regard, and his

rights as to such are exclusive. 5. The acts of an executor or administrator may be questioned in equity by a legatee, distributee, or other person having an interest,

but it must be done upon appropriate allegations in the pleadings. 6. If a bar, prima facie good, be set up by the defendant to the relief

sought by a bill, it cannot, in the absence of appropriate allegations,

be impeached by proof of fraud or mistake, however strong. 7. Where, therefore, the allegation of a bill is that a deed of release

executed by the distributees of an estate to one of its debtors is inoperative by reason of fraud or mistake, and the defendant sets up a release from the administrator, the latter, if proved, is a complete

bar, unless the bill is so amended as to impeach its validity. & Where joint debtors of an estate reside in different jurisdictions, an

administrator in either may effectually settle and release the demand as against all of them.

Beattie, adm'r, v. Abercrombie et als.

ERROR to the Chancery Court of Barbour. Tried before the Hon. J. W. Lesesne.

THE facts of the case may be found in the opinion.

BUFORD and RICE, for the plaintiff:

I. Complainant's removal from the administration operated as an abatement of the suit.-2 Ala. 415-418; 3 ib. 570.

2. Depositions taken whilst a suit stands abated will be suppressed.-Gresley Ev. 152; 1 Smith's Ch. Pr. 341, 525; 1 Story's Eq. Pl. §§ 328, 356-7, 361.

II. The pretended settlement in Georgia is wholly invalid as a defence in this suit-for many reasons. For instance, that settlement is not a valid defence here, because there is no legal proof-(that is, record proof,) that administration had then been granted to Holt or any other person, upon the estate of the intestate. This court cannot allow the grant of administration by the court of another State to be proved by a witness, without any record evidence. Even if the present complainant was executor de son tort in Georgia, a settlement there as such would not bind him in this suit, since he has subsequently and in 1840, duly obtained letters of administration in this State.Doe ex dem. Hornby v. Glenn, 3 Nev. & Man. 837; Dickinson v. Naul, 1 ib. 729; 1 Ad. & E. 49; 3 B. & Ad. 638.

III. The pretended settlement or transfer made on the 25th December 1838, cannot bar the relief sought by plaintiff. That transaction cannot be regarded as more authoritative than a stated or settled account between partners: And it is well settled that by showing mere errors or mistakes in such an account, the party injured is entitled at least to surcharge and fulsify it. If fraud is shown, the whole account is thereby opened, and the account is not in any respect entitled to the force of evidence against the party defrauded.-Collyer on Partn. § 373, et seq.; Vernon v. Vawdry, 2 Atkyns, 119; Robinson v. Alexander, 8 Bligh, N. S. 352; 3 Clark & Finnelly, 717; Oldaker v. Lavender, 6 Sim. 239; Maddeford v. Austwick, 1 Sim. 89.

CAMPBELL and HEYDENFELDT, for the defendants:

1. That the release executed by Hines Holt, the administrator of William J. Beattie, in 1838, is a bar to the relief

Beattie, adm'r, v. Abercrombie et als.

and discovery sought by the bill. That release was exe

cuted by the administrator of Beattie : In that character Holt represented exclusively the rights and credits which were of the decedent. He alone was competent to release them or to receive satisfaction of them. That release is operative until it is impeached. No averment of the bill assails the transactions between the defendants and Holt. The existence and sufficiency of his release are not put in issue, and the legal effect remains undisturbed by any thing contained in the bill.— 1 Williams on Ex. 508-9.

2. That the bill of the plaintiff is insufficient as a bill to impeach the release of the distributees. It is not competent for an administrator in his official capacity to impeach the transactions settled by the distributees. The distributees must appear on their own behalf and represent their own interests. An administrator cannot draw in question the validity of their transactions. They are res inter alios acta.

3. That the administrator appointed in Russell county is concluded by the acts of the administrator appointed in Georgia. He cannot impeach or question those acts. He does not stand in privity with him, nor is he entitled to gainsay any thing he has done. The administrator de bonis non could not by the common law do this. The distributees alone, upon proper allegations, were competent to do it. Much more is an administrator of an independent jurisdiction concluded by the acts of an administrator appointed in a forum which has jurisdiction of the subject.-Story's Conf. Laws, § 515; 1 Barbour Ch. Rep. 189.

4. It would have been improper to have suppressed the defendant's testimony. There is no evidence in the record to show at what time the suit was abated. It does not appear that it was abated when the testimony was taken. Even if abated, the acts of the commissioners in taking testimony are valid, without a notice to them. No notice was given until the testimony was taken.-3 Peere Williams, 195.

PARSONS, J.-The complainant, who is the plaintiff in error, filed his bill in the Chancery Court for Barbour county, on the 22d day of August 1845; and it appears that after he filed his bill, he was removed from his office of administrator of

Beattie, adm'r, v. Abercrombie et als.

William J. Beattie, deceased, by order of the Orphans' Court of Russell county, in which he had received his appointment. The same court afterwards appointed him administrator de bonis non of his intestate's estate, and this suit was subsequently revived by him, under his new appointment.

The complainant, at the November term 1847, of the Chancery Court, which was prior to the term at which the cause. was heard, moved to suppress the depositions which had then been taken by the defendants, on the ground that there was no party complainant in the cause, at the times when those depositions were taken. The chancellor overruled the motion, and that is now assigned as one of the errors. Among the depositions to which the motion applied was that of Hines Holt, and we may confine our decision upon this question to his deposition alone; because the others are not indispensable, according to our view of the case. This deposition was taken on the 24th day of October 1846, and the question for us to decide is whether or not the chancellor erred in refusing to suppress it, according to the motion which was made for that purpose at the November term 1847. The motion was made upon the supposition, that the complainant had been removed from the administration before the deposition was taken, and that he was not re-appointed, or at any rate, that he was not made a party again to this suit, until afterwards. If that fact had been made to appear to the chancellor in support of the motion to suppress, the question of error would have been fairly before us. But it was not made to appear to the chancellor at the time when the motion to suppress was made, nor at any time before, that the complainant had been removed from his administration at or before the time when Mr. Holt's deposition was taken. If this fact was shown to the chancellor by any record, or other evidence, when the motion to suppress was made, or at any time before, the transcript of this cause does not show it, and therefore we can see no error in the decision of the chancellor upon what was then before him.

The complainant's counsel, at the hearing of the cause, again moved to suppress the same deposition, on two grounds; 1st, that it was taken after the return day of the commission, and 2d, that the commission issued after the complainant was removed from his administration and while it was abated. This motion

Beattie, adm'r, v. Abercrombie et als.

was also overruled, and correctly, we think, if for nothing else, because the motion was made at the hearing. The Chief Justice and myself, who sat alone, so decided in the case of Jordan v. Jordan, 17 Ala. 466. In that case we held that in general a motion to suppress a deposition for irregularities in the taking of it came too late at the hearing of the cause. The point upon which the Chief Justice and myself could not agree in that case does not belong to this, and therefore we might rest this question upon the authority of that case and the authorities there cited. But the counsel for the defendants has refered us to other authorities to the same effect, among which are 1 Swanston's Rep. 171, and Turner & Venables' Prac. 578.

Mr. Holt testifies in his deposition that he was appointed administrator of William J. Beattie, deceased, by the Inferior Court of the county of Muscogee, Georgia, sitting as a Court of Ordinary, about the 10th of December 1838, and it appears by his deposition that he acted as such in that State. It is proved, too, by the deposition of James Beattie, sen'r, which was taken and used in this cause by the complainant, that Mr. Holt was such administrator; and this proof was brought out by one of the complainant's interrogatories, which was evidently intended for that purpose. In this place it is proper to mention, also, that Mr. Holt, in his deposition, proves a copy (accompanying his deposition) of the deed of the 25th day of December 1836, executed by himself and others, and he proved the execution of the original. In another part of this opinion we will advert again to Mr. Holt's appointment as administra tor, and to the deed of the 25th day of December 1835. We allude to them now for the purpose of deciding in this connection, whether the administration of Mr. Holt and the deed are sufficiently proved by the evidence which has just been stated. It is true an authenticated copy of the record of Mr. Holt's appointment, and the production and proof of the original deed by the subscribing witness, would have been the best evidence, and parol evidence in such cases is not in general admissible. But this evidence was all read at the hearing of the cause, without objection made in the Chancery Court, at that or any other time, so far as appears by the record. It is objected to in this court for the first time. The objections that were made, and

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