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Frowner & Wife and Bobe, adm'r, 89 Leseur & Wife and Moore, adm'r, 606 Gannard and Francis et al. 794 Lewis and Wright, adm'r,
194 Gardner v. Randolph,
685 Lewis v. Cook and Mitchell, 334: Gates and Thompson, 32 Lewis and Edwards,
494 Gauntt & Wite v. Tucker's Ex'ra, 27 Linton and Norton & Wife, 690) Gibson v. Wilson, 63 Lockett v. Howze,
613 Gilbert and Myers, 467 Logan, ex'r, and Roland,
307 Glassell and Waddell,
561 Long v. The Com’rs Court, 482 Glover v Glover, 367 Long, adın'r, v. Davis,
801 Gould v. Hill,
84 Lyon & Baker and Swilley & Riley, 552 Gould v. Hill,
457 Lyon et al. and Worthy et al. 784 Governor and Payne et als. 320 Magee and Tucker & Wife, 99 Governor and Evans et als. 659 Malempre and Etheridge, 565 Governor and White et als. 767 Marlow and Calvert,
67 Graham y. Nesmith et al.
763 Marsh and Forward et al. 645 Grabam and Perry,
822 Martin, ex'r, v. Williams, adm'r, 190 Green, adm'r, and Ramey et als. 771 Martin's Ex'rs v. Smith et al.
819 Grigsby and Hair,
45 Mason's Adm'x & Williamson & Wife, 87 Gunnels v. The State Bank, 676 Matlock v. Thompson,
600 Haden et al., ex’rs, v. Brown, 641 Maulden, Montague & Co. y. ArmisHair and Grigsby, 45 tead, ex'r,
500 Hair et al. and Dial, 798 Maxcy v. Knight,
300 Hall et als. and Carpenter & Wife, 439 MeDade et al., adm’rs, v. Mead, 214 Hannah and Ross,
125 McKenzie and Adams, Hargrove et al. and Duncan, adm’r, 77 McKissack et al. v. Davis et al. 315 Harris et al. v. Billingsley et al. 438 McMuken et al. v. McMaken, 576 Harrison and Pool, 514 McWhorter and Hopper, adm'r,
229 Harwell and Townsend & Bro. 301 Mead and McDade et al., adm’rs, 214 Henderson v. Plumb & Robbins, 74 Mervine v. Parker,
241 Henderson and Moore & Jones,adm's 232 Miller et al. and Shackelford, 675 Hill and Gould,
84 Mims' Ex'r's v. Sturtevant, 359 Hill and Gould,
457 Mims et als. and Shorter's Adm'rs, 655 Hirschfelder v. The State, 112 Mooney & Black v. Parker, 708 Hodnett et al and Pool, adm'r, 752 Moore & Jones, adın'rs, v. Davidson, 209 Holly and Burton et al. 408 Same v. Henderson,
232 Hooks v. Smith et al.
338 Moore's Ex rs v. Moore's Dist's, 242 Hooks et al v. Br. Bank Mont'gy, 451 Moore v. Wallis et als.
458 Hooper v. Edwards, 280 Moore v The State,
532 Hopper, adm'r, v. McWhorter, 229 Moore and Drake,
697 Hopper, adm'r, v. Steele, 8:28 Moore, adm'r, v. Leguer & Wife, 606 Hoskins and Jones' Ex'rs, 489 Moore v. Easley, admir,
619 Howze and Lockett, 613 Moore v. Barclay,
672 Hoyt, Ford & Robinson v. Murphy, 316 Morris aud Spivy,
254 Huey et al., adm’rs, and Clealand, 343 Moseley and Wilkinson,
288 Hullum v. 'The State Bank, 805 Munüy and Smith,
182 Jones v. Jones,
248 Murphy and Hoyt, Ford & Robinson, 316 Jones' Ex’rg v. Hoskins, 489 Murray v. The State,
727 Jones and Stokes, 734 Myers v. Gilbert,
467 Johnson et al. v. Toulmin et al. 50 Nelms v. Williams,
650 Johnson, Ex parte,
414 Nesmith et al, and Grahamn, 703 Johnson v. Thweatt, 741 Newman, ex'r, v. Pryor,
186 Juilge Co. Court Pike and Wilson, 757 Nicholson v. The State,
529 Kelly v. Payne, 371 Norton & Wfe ✓ Linton,
690 Kelly and Perminter, 716 Nugent v. The State,
521 Kennedy v. Stallworth, er'r, 263 Otis et al. v. Thorn,
385 King v. Stevens, 475 Parham and Wolfe,
441 Kingsland & Co. v. Forrest, 619 Parker and Mervine,
241 Knevals et als. and Wiewall, 65 Parker and Mooney & Black, 708 Knight, Guard., and Wilson, 129 Parınlcy and Rives,
256 Knight and Maxcy,
300'Payne et als. v. The Governor, 320 Knox and Sims & Jones, 236 Payne and Kelly,
371 Knox's Dist'o v. Stoele, adm'r, 815 Pearson et al. v. Darrington, admr, 348 Lanier v. The Br. Dank, Monts; 625 Permintor v. Kelly,
Perry and Dupree,
720 Perry v. Graham, 822 und Murray,
727 Phillips v. Poindexter, 579 Steele v. Brown,
700 Plumb & Robbins and Henderson, 74 Steele, adm'r, and Knor's Dist's. 815 Pool v. Harrison, 514 Steele and Hopper, adm'r,
828 Pool, adm'r, v. Hodnett et al. 752 Stevens and King, Pope v. Welch, adm'r, 631 Stiff, Ex parte,
464 Price et als. v. Talley's Adm’rs, 21 Stokes v. Jones,
734 Price, adm'r, and Simmons, adm'r, 405 Strong v. Beroujon,
168 Pryor and Newman, ex'r, 186 Sturtevant and Mims' Ex'rs, 359 Ramey et als. v. Green, adu'r, 771 Swilley & Riley v. Lyon & Baker, 552 Randolph and Garduer,
085 Talley's Adm’rs, and Price et als. 21 Read v. Walker, 323 Tart and Barron, adm'r,
668 Richardson and The State, * 109 Thompson v. Gates,
32 Ridgway and Beall & Co., 117 Thompson et al. and Matlock, 600 Rives v. Parmley,
256 Thompson and The Comm'rs Court, 694 Roberson and Ware, 105 Thorn and Otis et al.
395 Robertson v. Smith, 220 Thurman v. The State,
276 Roberts and Andress, 387 Thweatt and Johnson,
741 Roland v. Loga ex'r,
307 Toulnin et als. and Johnson, 50 Ross v. Hannah,
125 Townsend and Brother y, Harwell, 301 Bowland and Smith,
665 Tucker's Ex’rs and Gaunt & Wife, 27 Rowland v. Walker, 749 Tucker & Wife v. Magee,
99 Sankey's Dis'ts v. Sankey's Ex’rs, 713 Waddell v. Glassell,
561 Seawell and The State Bank, 616 Walker and Read,
323 Shackelford v. Miller et al. 675 Walker and Simmons & Wife, 664 Shaw v. The State, 547 Walker and Rowland,
749 Shorter's Adm'r y. Mims et als. 655 Wallis et als. and Moore,
458 Simmons adm'r, v. Price, adm'r, 405 Ware v. Roberson,
105 Simmons & Wife v. Walker, use, &c., 664 Weaver et al. and The State, 293 Sims & Jones v. Knox, 236 Webb and Cook & Hardy,
810 Smith v. Mundy, 182.Welsh, adm'r, and Pope,
631 Smith and Robertson, 220 White v. Adkins,
636 Smith et al. and Hooks,
338 White et al. v. The Governor, 767 Smith v. Rowland, 605 Whitehead v. Brown,
682 Smith et als. v. Martin's Ex'rs, 819 Whitfield and Cox, adm'r,
738 Spivey v. Morris, 254 Wilkinson v. Moseley,
288 Sprague & Winston v. Zunts, 382 Williams, adm’r, and Martin, ex'r, 190 Stallworth, ex’r, and Kennedy, 263 Williams v. Cawley,
206 Standefer et al, and Ewing, 400 Williams and Nelms,
650 Siate v. Richardson,
109 Williamson & Wife v. Mason, adm's, 87 and Hirschfelder, 112 Wilson and Gibson,
63 ", and Batre,
119 Wilson v. Knight, Guard., 129 and Thurman,
276 Wilson's Heirs v Wilson's Adm'r, 176 v. Weaver et als. 293 Wilson v. Calvert, adm'r,
274 and Bush et al.
415 Wilson v. Judge Co. Ct. Pike, 757 and Nugent, 521 Wigwall v. Knevals et als.
65 and Nicholson,
529 Witherington, adm'r, v. Brantley, 197 and Moore, 532 Wolfe v, Parham,
441 and Beasley,
535 Worthy et al. v. Lyon et al. 784 and Crow, 541 Wright, adm'r, v. Lewis,
194 and Sbaw,
547 Kunts and Sprague & Winston, 382 7. Centreville Br. 1'o., 678
In 2d line from bottom, page 158, for married, read named.
For the correction of error in 1st head-note, p. 209, see Index, Title, DiscosTINUANCE 1.
In first line of 3d head-note, p. 280, strike out the word can.
In 8th and 9th lines of 1st head-note, p. 700, for surety, where it occurs in each, read security
For correction of error in 3d head-note, p. 771, see Index, Title, CHANCEEX PLEADING AND PRACTICE 17.
Note. After the delivery of the opinion in the case of Hopper, adm'r, v. Steele, p. 828, a re-hearing was granted, and the writ of error subsequently dismissed, but the opinion, not having been withdrawn, was placed in the hands of the Reporter, and has thus gotten into this volume. It is consequently not to be regarded an an authoritative decision.-REPORTER.
CASES ARGUED AND DETERMINED
AT JUNE TERM, 1850.
BEATTIE, ADM'R, vs. ABERCROMBIE ET ALS.
4. 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. 8. 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't, 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. S328, 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 pot a valid defence here, because there is no legal proof(that is, record proof,) that administfation 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 seulement there as such would not bind him in this suit, since he has subscquently 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 1839, 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 Siin. 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 bur to the relief