note was given for funds in the hands of the defendant, belonging to the estate, or for a debt due to the estate. The note had been transferred by the plaintiff and payee, to one of the heirs at law or legatees, in payment of his portion or legacy, and had, by him, been transferred to another person, for whose benefit this action was brought.

It was in evidence that the estate had not been fully administered, and that the accounts of the defendant, as executor, had not been finally settled before the Ordinary.

A motion for non-suit was made by the defendant's counsel, and sustained by the Court.

The plaintiff appealed, because his Honor erred in deciding that the plaintiff could not maintain his action on the proof which was adduced.

Columbia, January, 1833.

Berry

V.

Tart.

JOHNSON J. delivered the opinion of the CourtThis question was decided in Deloach exor. v. Yeoman and wife, at the last sittings in Charleston, and I have an imperfect recollection of another case which occurred in this Court some years since; and which I think, Stockman was brought up from Newberry District, in which the 1829. same point was ruled.

The note on which this action was brought, contains an express promise by defendant to pay to plaintiff on a day certain, the sum specified, which is expressed to be for value received, and I take it that the defendant is bound to perform this contract unless he can shew that it was without consideration or against law.

The plaintiff is described in the note as the ex'or. of Right Bass, and the proof is, that defendant was also one of his ex'ors. and that the note was given for funds in his hands belonging to the estate, or for a debt due by him to the estate, and that he, defendant, had not settled his accounts with the Ordinary, and hence it is want to be concluded that there was

Kinnard. May,

Columbia,

Berry

V.

Tart.

January, 1833. no consideration for the note, because it is said that the defendant has the same right to the possession of the funds that the plaintiff has. This in point of law is unquestionably correct; they are equally entitled to the possession of the funds of the estate, but it does not follow that even the partition of the fund itself between them may not be the subject of contract.— Suppose the whole funds of an estate in the hands of one of two ex'ors. the other according to the rule is equally entitled to them. He has too, an equal right to share the profits arising from the commissions for administration of the estate, and this of itself is a sufficient consideration for a contract between them for a partition of the fund. Again, suppose they make partition of the funds between themselves, and one in consideration that the other will lend him a part of the funds in his hands, promises to pay. Is not this a sufficient consideration for the promise? so if one of two ex'ors. be in advance to the estate, and the other has funds in his hands, will be not be bound by a promise to pay? These and many other circumstances which might be mentioned, shew abundantly, that a contract between joint ex'ors. concerning the funds of an estate, may have a rightful and legal consideration; consequently that a contract between them is not necessarily void. If the defendant had been able to shew that he had settled his accounts and was in advance to the estate, and that plaintiff had funds in his hands, then I incline to think he would not have been liable, that in effect would have proved a failure of consideration, but this is not pretended.

Nonsuit set aside and new Trial granted.

Columbia,

THE TREASURERS v. TARRANT, Sheriff, and his se- January, 1833. curities,

Before Mr. Justice GANTT, at Anderson-Fall Term, 1832.

Two

Treasurers

V.

Tarrant.

The Act of 1792 (1 Faust, 213) au

vival of process absent

or process" to be

This was a scire facias to revive a judgment. of the defendants had removed from the State, and as thorizing the reto them notice had been posted on the Court house against defendants, redoor that a scire facias had issued. The defendants quires the rules residing here and who had been served, put in a de-posted on the murrer, which was overruled by the presiding Judge, and they now appeal from his decision on the ground that the absent defendants had not been made ties.

BURT, for the motion.

par

O'NEALL J. The act of 1792 (1st Faust 213) provides" that where rules or process to revive proceedings at law, cannot be served upon persons because of their absence from, and without the limits of this State, it shall be sufficient to post such rules or process upon the Court house door of the district in which such absent persons had their last residence." The words of the act are plain and obvious; it requires that "the rules or process," shall be posted on the door of the Court house of the district in which the absentees last resided. A literal construction might require the original rule or process to be posted; but a copy of either, would be a compliance with the terms used, and be within the meaning of the law, and this practice has the sanction of the case of Henry v. Ferguson, decided by the Court of Appeals, Spring Term 1830. But a mere notice that a scire facias has been issued against absent defendants, cannot make them parties. The posting of such a paper on the door of the Court house is not a compliance with the act. The act is a remedial one; but still, however liberally we might be disposed to construe it, yet we are not at liberty to adopt such a lati

Courthouse door:

the posting of a

mere notice that a sci. fa. has issued is not a compliance with the Act.

Columbia, January, 1833.

Treasurers

V.

Tarrant.

tude of construction as would introduce a mode of proceeding essentially different from that pointed out by the act.

The motion to reverse the decision of the Judge below, over-ruling the defendant's demurrer, is granted.

JOHNSON J, Concurred.

HARPER J. Absent.

An absence

without being

the legal pre

when the hus

JOHN BOYCE v. ELIZABETH OWENS.

Tried before Mr. Justice GANTT, at Laurens.-Fall Term, 1832.

The facts of this case sufficiently appear from the following opinion of the Court, delivered by O'NEALL, J.

The facts of the case appear, in substance, to be, from the State that Elizabeth Owens, the defendant, is the wife of John for seven years, Owens, who abandoned her in the year 1817 or 1818, heard of, raises and went out of the limits of this State, into the sumption of the State of Georgia. That he has never returned to band; but no this State, but is still alive, having been heard from by lapse of time, several witnesses, within a short time before the trial band is absent of the cause. On the 7th March, 1830, the defendbut known to be ant conveyed by deed, with a general warranty, a seen or heard of, tract of land to the plaintiff, for $120. It was allegin less than so ed and proved that she had previously conveyed the the trial, will, of same land to her sister, Jane Boag, as whose proeffect of allow-perty it was, after the conveyance to the plaintiff, contract as a feme seized and sold, under an Attachment. The action was covenant on the warranty, to which the defend

from the State,

alive, by being

se

ven years from

itself, have the

ing the wife

sole.

The only

exceptions to this

ant pleaded coverture; and the Jury, under the charge of the Court, found for the defendant.

Columbia, January, 1833.

Boyce

V.

Owens.

rule, are, when

The plaintiff has appealed and moves for a new trial, on the ground that the plea of coverture cannot be sustained, where it appears that the husband has been absent from the State more than seven years, the husband has without any known intention of returning, although transported; or he may have been heard of by individuals during that time.

been banished or

is an alien, and

resides abroad:

in such cases the wife is, in legal

feme sole. Bean n. Morgan, 4

tioned and com

mented on.

Whether the plea of coverture was in abatement or contemplation, a in bar of the action, does not appear; it is, however, Mc. 145 ques supposed to have been, and will be considered, as in bar; nor have we any means of ascertaining whether the replication was a general traverse of the plea, or whether it set out specially the circumstances relied on, in the proof and ground of appeal in answer to it. But assuming the latter to have been done as the most favorable position, in which we can regard the case for the plaintiff, and that it had been demurred to, by the defendant, or proved to be true on the trial, I ant satisfied that the plaintiff's motion must fail.

In England, it was, at one time, ruled, that an abandonment of a wife by her husband, and his residence beyond the realm, without an intention of returning, would enable her to contract, sue and be sued, as a feme sole. So also, a voluntary separation, and a separate maintenance secured by deed, was held to have the same effect. But these cases were either actually or in effect, overruled by the case of Marshall v. Ruiton, 8 T. R. 545. The case of Boggett v. Frier, and another 11 East 301, is exactly analagous to the case before the Court. The action was trespass for breaking and entering the dwelling house of the plaintiff, expelling her therefrom and taking her goods on the 8th of April 1807. The defendants pleaded the coverture of the plaintiff in abatement of her suit; to which she replied that before the trespass, to wit, on the 17th of February 1805, her husband had abandoned her and departed out of the Kingdom to parts beyond the seas, to wit, to America, and that he had not returned or ever corresponded with the plaintiff or been heard