ERROR to the Circuit Court, for the South Caro lina district.

So long as a qualified executor is ca

pable of exercising the au

been invested

This was an action of trespass quare clausum fregit, brought by the Plaintiff in the Circuit Court (who was thority with also Plaintiff in error,) to recover a tract of land lying in which he has the district of South Carolina, and in the possession of the by the testaDefendant, to which the Plaintiff asserted a title derived tor, that aufrom a certain Joseph Salvadore.

thority cannot be conferred, either with or

of the execu

either absolute

person, that

Both parties admitted that Salvadore was legally seized without limita tion by the of an estate, in fee, in the land in dispute. It appeared Court of ordifurther, that Salvadore had executed several bonds in pary, on any other person favor of a certain Daniel Bordeaux; that Bordeaux And if, during brought an action against Salvadore on these bonds, and such capability obtained thercon a judgment by default, which was en- tor, the orditered up and signed on the 30th of August, 1786; that nary grant adno further steps were taken in the cause, until the 2d ministration, of January, 1787, when an execution issued thereon, or temporary and was lodged in the sheriff's office' on the same day; to another that Salvadore departed this life on the 29th of Decem- grant is abso ber, immediately preceding. Salvadore left a will and lutely void. two or three codicils, by which he appointed his three daughters, a certain William Stevens, and a certain Joseph Dacosta, his executors. All these persons were executor who absent, out of the state, excepting Dacosta, who proved tor, it does not the will and codicils, and regularly qualified as execu bind the estate tor thereto, on the 5th of January, 1787: he continued and an exeto reside in the city of Charleston, South Carolina, un- cution upon til some time in the year 1789, when he went to Savan- such a judguah, in the state of Georgia, where he continued to re- pot legally be VOL. VIIL

2

If a judgment be rendered a

gainst one as

is not execu

of the testator,

ment could

บ.

such estate.

tion durante

mentary

granted.

tribunal, upon

diction, are

void.

GRIFFITH side until November, 1790. On the second day of October, 1790, one James Lamotte requested and obtained FRAZIER. from the ordinary of Charleston, a citation, in behalf of the principal creditor of Salvadore, who was Bourlevied upon deaux, to shew cause why letters of administration with By the law of the will annexed, should not be granted to him. On the South Caroli- return of the citation. no cause being shewn to the conna, administra- trary, the ordinary did, on the 8th of October, 1790, absentia testa-grant general letters of administration with the will antoris, cannot nexed, on the estate of Salvadore, to Lamotte. A cerbe granted after probat of tificate was also obtained from the ordinary, by which the will and it appeared that it was the custom of the ordinary Court letters testa- to grant letters of administration durante absentia of the executor. Bourdeaux, on the 27th January, 1791, obThe acts of a tained a rule from the Court of common pleas, against a subject not Lamotte, as administrator of Salvadore, to shew cause within its juris- within thirty days, why the judgment obtained against Salvadore, as aforesaid, should not be revived, and an By the law of execution issue thereon. This rule was made absolute South Carolion the 15th of March. 1791, "subject to future arguna, the 30 day rule is substi- ment." On the 16th of April following (no further artuted for a sci- gument or proceeding having been had on the said rule, judgment in and no Court intervening in the mean time,) an execution those cases on- issued, on said judgment, against Lamotte, administraly where lapse tor, &c. was lodged in the sheriff's office, and levied vents the upon the land in question, by the Sheriff, on the 11th of Plaintiff from May, 1791. The land was sold at public outcry to the highest bidder, on the 6th of June, 1791, and by a deed of the same date, was conveyed by the Sheriff to Peter Freneau, the purchaser. On the 16th of July, 1796, a decree was rendered in the suit, Pierce Butler v. Daniel Bourdeaux and Peter Freneau, directing the said Peter to convey to such person as Pierce Butler should appoint. In pursuance of this decree, Peter Freneau conveyed to Samuel Jackson, under whom Griffith, the Plaintiff in this case, claims by regular conveyances. Frazier, the Defendant, represents the heirs of Salvadore.

re facias to a

of time pre

suing out exe

cution.

On the motion of the Defendant, the Circuit Court instructed the jury, that the letters of administration granted to James Lamotte, were totally void; that therefore the judgment of Bourdeaux was not revived against the estate of Salvadore; that the sale and conveyance by the sheriff passed no title to the purchaser; and that

the evidence was not sufficient to maintain the Plain- GRIFFITH tiff's action. The jury found a verdict for the Defendant, and judgment was rendered in his favor. The FRAZIER. Plaintiff excepted to the opinion of the Court, and sued out a writ of error to the judgment.

HARPER, for the Plaintiff in error, after stating the facts of the case, contended,

1st. That the letters of administration, being durante absentia of the executor, were lawfully and properly granted by the ordinary to James Lamotte.

2d. That the question whether the granting of these letters were legal or not, was a question proper for the decision of the Court of ordinary; and that the judgment of that tribunal was conclusive until reversed on appeal to the state Court having competent jurisdiction: that, consequently, the sale, in the present case, was valid, and the Plaintiff's title good.

JONES, contra.

1. The grant of administration durante absentia was absolutely void which being the case, it is clear that the subsequent sale of the property in question by the sheriff was illegal and invalid.

Dacosta, the executor, had duly qualified; and the circumstance of his having absented himself from the state of South Carolina, for the space of twelve months is a matter of no importance, unless at the same time he was incapable of performing his duty as executor. But this does not appear to have been the fact. The ordinary therefore had no right to grant letters of administration to Lamotte.

As to the certificate, said to have been given by the ordinary, stating that it was the custom of the ordinary Court to grant administration durante absentia of an executor, it would be shown, on the part of the Defendant, that in every case which could be produced in support of that custom, the executor had not qualified.

The jurisdiction of the ordinary relative to the ap