Rutherford vs. The Executive Committee Baptist Convention of Georgia.

No. 10. WILLIAMS RUTHERFORD, Sr. plaintiff in error, vs. THE EXECUTIVE COMMITTEE OF THE BAPTIST CONVENTION OF THE STATE OF GEORGIA, for the benefit of the Mercer University.

[1] An instrument, under the hand and seal of the party executing it, imports a consideration in law, and a demurrer to the admissibility of such an instrument in evidence, for want of consideration, will be overruled.

Debt, in Monroe Superior Court. Tried before Judge STARK, March Term, 1850.

The defendant in error brought an action of debt against the plaintiff in error, upon the following instrument: "In considera-. tion of the importance of literary and religious institutions to the wellbeing of society, I hereby promise to pay to the treasurer of the Georgia Baptist Convention, or bearer, for the benefit of the Mercer University, the following sums, to-wit: Fifty dollars on the 1st of January, 1839; fifty dollars on the 1st of January, 1840; fifty dollars on the 1st of January, 1841; fifty dollars on the 1st of January, 1842; fifty dollars on the 1st of January, 1843; for the faithful payment of which sums, I hereby bind myself, my heirs and assigns." Witness my hand and seal, this 3d day of April, 1838.

Signed

WILLIAMS RUTHERFORD, [L. S.]

The two first instalments had been paid by the defendant. To this action, the defendant filed the plea of the want of consideration. On the trial of the cause, the counsel for defendant objected to plaintiff's giving in evidence the instrument sued on, "on the ground that the paper, on its face, was void as a contract at law, for want of a legal consideration to support it."

The Court overruled the objection, and counsel for defendant excepted.

HAMMOND, for plaintiff in error.

PINCKARD, for defendant in error.

Sorrell vs. Ham and Ham.

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

[1.] The defendant in the Court below demurred to the instrument declared on, when offered in evidence, upon the ground that it was void as a contract in law, for want of a legal consideration to support it. The Court overruled the demurrer, and the defendant excepted, and now assigns the same for error here.

The instrument set forth in the record is executed under the hand and seal of the defendant, and necessarily imports a consideration. In the case of a specialty, no consideration is necessary to give it validity, even in a Court of Equity. Chitty on Contracts, page 2. Chitty on Bills, 8. Fallowes vs. Taylor, 7 Term Rep. 473. But it is said this rule is merely technical. Admit it to be so, yet, we have no disposition to alter it, even had we the power to aid this defendant in making, what appears to us on the face of this record, to be an unjust defence against the payment of the plaintiff's demand.

Let the judgment of the Court below be affirmed.

No. 11.-FRANCIS SORRELL, executor of John B. Gaudry, plaintiff in error, vs. MILTON M. HAM and STEPHEN R. HAM, defendants in error.

[1.] An executor may bring ejectment to recover lands, but his right to recover depends upon the will, and that must be produced as part of his title. [2.] A grant, in letters testamentary, of power to administer the goods and chattels, rights and credits of the testator, gives authority to administer the will also as to real estate.

Ejectment, in Houston Superior Court. Tried before Judge STARK, April Term, 1850.

Sorrell vs. Ham and Ham.

This was an action of ejectment, brought by the plaintiff in error against the defendant, under the Act of 1847, for the recovery of a tract of land lying in Houston County, and mesne profits.

On the trial in the Court below, the plaintiff introduced in evidence a grant from the State of Georgia to James Gould, and a deed from Gould to John B. Gaudry. The plaintiff then read in evidence his letters testamentary, as follows:

GEORGIA:

By the Honorable the Court of Ordinary, for the County of Chatham, in the State aforesaid. To all to whom these presents shall come, greeting; Know ye, that on the eleventh day of January, in the year of our Lord, one thousand, eight hundred and forty-seven, the last will and testament of John B. Gaudry, late of said County, in this State, merchant, deceased, was proved, approved and allowed of; the said deceased having, whilst he lived, and at the time of his death, been possessed of divers goods, chattels and credits, within the County and State aforesaid, by means whereof the approbation and allowing of his testament, and the power of granting the administration of all and singular, the goods, chattels and credits of the said deceased, to this Court, is manifestly known to belong; and that the administration of all and singular the goods, chattels and credits of the said deceased, and of his testament, any manner of way concerning, is hereby granted and committed unto Francis Sorrell, named executor in the said last will and testament, being first sworn on the holy Evangelist of Almighty God, well and faithfully to administer, and make a full and perfect inventory of all and singular, the goods, chattels and credits of the said deceased, and to exhibit the same into the Clerk of the Court of Ordinary's office, of the said County, in order to be recorded on or before the thirteenth day of April next ensuing, and to render a just and true account, calculation and reckoning thereof, when thereunto required.

Witness, the Honorable Anthony Porter, one of the said Justices, this the 13th day of January, 1847.

SEABORN GOODALL, c. c. o. c. c. [L. S.]

Sorrell vs. Ham and Ham.

The plaintiff proved the locus and possession of the defendants, and the value of rent, and closed his case.

Counsel for the defendants moved the Court for a non suit.

Which motion was sustained by the Court, and a non-suit was awarded, "for the reason that these letters testamentary only gave the executor power over the "goods and chattels," "rights and credits," and this action, not being for the recovery of a term or other chattel interest, but being an action for the recovery of real estate and mesne profits.

To which decision, counsel for plaintiff excepted, and has assigned error.

POE and NISBET, for plaintiff in error.

GILES, for defendants.

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

[1.] The plaintiff brought his action of ejectment for the recovery of land, as executor of the last will and testament of John B. Gaudry. It was non-suited, on the ground that the plaintiff's letters testamentary only gave him power over the goods and chattels, rights and credits of the testator, and therefore, he could not recover lands. Whilst we sustain the judgment of the Court, we do not sanction two propositions which seem to have been ruled by the Court. The first is, that the executor cannot bring ejectment for lands. We hold that he can, but that his right to recover, depends upon the will. The right of recovery will depend upon the fact, whether the lands have been bequeathed at all or not-they may not be. In that event, no right of action passes to the executor, and it may depend upon the character of the bequest of lands in the will. The will is, therefore, an indispensable part of his title, and must be produced on the trial. It was not produced, and for that reason we hold that the plaintiff was necessarily non-suited. On this ground alone, the judgment is affirmed.

[2.] The other proposition is, that the plaintiff is not entitled to recover lands, because the letters empower him to administer VOL IX 8

Terrell vs. The State of Georgia.

only the goods and chattels, rights and credits of the deceased. It is not necessary, to enable the executor to administer the real estate, that there should be an express grant of power to that effect in the letters. It would be better that they contain such a grant; but under our laws, the right to execute the will, both as to personalty and realty, follows in the general grant of power to administer the goods and chattels, rights and credits. Prince's Dig. 225, 233, 241. 1 Kelly, 540. 3 Kelly, 105. Judgment affirmed.

No. 12.-WILLIAM TERRELL, plaintiff in error, vs. THE STATE OF GEORGIA, defendant.

[1.] It appearing, from the statement in the face of the indictment, that the Grand Jury were sworn, it is not competent, on a motion in arrest of judgment, to disprove the recital by aliunde testimony.

Indictment for murder. Tried before Judge HILL, at March Term, 1850.

At the September Term, 1848, of DeKalb Superior Court, a true bill for murder was found and returned by the Grand Jury against William Terrell, the plaintiff in error. At March Term, 1850, the defendant was put upon his trial, and the Jury returned a verdict of voluntary manslaughter.

The defendant, by his counsel, moved to arrest the judgment of the Court on two grounds:

1st. Because the prisoner was not charged in the bill of indictment with having committed the offence of murder UNLAW

FULLY.

2d. Because the name of Patterson M. Hodge appeared as a Grand Juror in the bill of indictment, and it no where appeared, on