ADMINISTRATORS AND EXECUTORS—(Continued.)
attributable to his laches or neglect. Shepard's Heirs vs. Shep-
ard's Administrator, 300.
5. The Judge of the County Court is not authorized by the statute
to approve securities to obligations for sales of personal property
by administrators. Taking good security is a personal duty of the
administrator. The simple approval of the surety by the Judge
of the County Court is not sufficient. The administrator must
prove that the personal security taken was good. Id.
6. Such notes when taken are not to be treated as investments. The
administrator should be diligent in their collection, and if an in-
vestment is then proper it must be of such character as the law
sanctions.
7. An administrator receives a gold receipt from the decedent.
This receipt is executed to the deceased in his lifetime by a per-
son engaged in trade, with whom the gold is deposited for safe-
keeping. The depositary after the qualification of the adminis-
trator always denies his liability to the estate. The administra-
tor delays suit for over two years, and sues at a time when a re-
covery of a judgment in due course of law would not have resulted
in realizing the money. The depositary died before the institu-
tion of the suit, and up to the time of his death was considered
solvent. Under these circumstances the administrator is liable
for the debt. Id.
8. An administrator receives a note from the decedent. The maker
thereof is a person engaged in trade. He was reputed solvent,
paid the interest, and the administrator, had he insisted upon
payment, could have realized the amount before his death. The
administrator, after a delay of more than two years, and after
the death of the maker, sues and the estate is found insolvent.
The evidence shows that the purpose of the administrator was to
hold the note until distribution, and to treat it as cash or an in-
vestment. He is liable for the loss. It is the duty of an admin-
istrator to collect the debts of an estate within a reasonable time
after his qualification. He must act as a discreet business man
would whose duty it was to collect and distribute the estate
within the time required by law. He must call in such debts.
He cannot treat them as investments upon personal security. Id.
9. An allowance for sums paid an auctioneer for the sale of personal
property is proper; so, also, is a bill for advertising time and
place of sale. Id.
10. The administrator in deference to, and at the request of the heirs,
has a partition of the lands of the estate by the County Court,
each person entitled taking his share The parties thus availing
ADMINISTRATORS AND EXECUTORS—(Continued.)
themselves of and consenting to such proceedings are estopped
from refusing to pay their share of all legitimate expenses in-
curred thereby, or in connection therewith, and cannot set up a
want of jurisdiction in the court, and thereby have the adminis-
trator, who acted in deference to them, charged with the entire
expense. Id.
11. The administrator is entitled to a fair and just compensation for
all services rendered in connection with the estate. When a per
diem of from $2 to $2.50 is allowed for services in the absence of
controlling and clear evidence, showing that it is too much, it
should not be disturbed by the Circuit Court or by this court. Id.
12. An administrator is not entitled to commissions on the gross
amount for which the personal property sold. He is entitled to
commissions on the amount of money received at the sale, and on
all sums of money thereafter realized from the credits extended.
A commission of six per cent, on the money thus collected is a
reasonable allowance. Id.
13. A like commission on money collected by the administrator from
notes and accounts left by the deceased is a reasonable compen-
sation for the service. Id.
14. The sum of $1,942.25 cash comes into the hands of the administra-
tor from the deceased. He retains it on hand about two months
and then disburses it. A commission of three per cent. and an
allowance for per diem is a sufficient allowance for the service.
It is not too much. Id.
15. Manner of accounting.-On all moneys received the interest at
the annual balances is added to the principal. On notes or other
securities lost by the neglect or laches of the administrator, only
simple interest is charged except under special and peculiar cir-
cumstances, showing something more than simple neglect. Id.
16. An administrator is entitled to compensation for services bona fide
rendered in endeavoring to collect and in investigating the condi-
tion of notes, the makers of which were reputed to be insolvent.
Id.
17. An administrator is not to be debited as of course with costs and
charges attending unsuccessful suits brought by him upon the
paper belonging to the estate. If, under the circumstances, the
litigation was just and proper, and apparently for the benefit of
the estate, and brought bona fide, he is entitled to credits for costs
and charges, and for services rendered in connection with the lit-
igation. Id.
18. Upon the institution of a suit against him, the administrator may
relieve himself of liability for interest by paying the money into
ADMINISTRATORS AND EXECUTORS—(Continued.)
court, otherwise the legal rate of interest on each class of debts
existing at the commencement of the suit continues according to
law. Id.
19. To the extent that charges paid by the administrator to the Judge
of the County Court are illegal, to that extent should the admin-
istrator be charged therewith. Id.
20. Costs cannot be recovered against an executor or administrator
when the suit is brought within six months after the issuing of
letters. Cooper, Executor, vs. Livingston, 684.
21. In a suit against the executor of a will upon a note made by dece-
dent and endorsed to plaintiff before due, defendant having
pleaded a want of consideration, it is shown that plaintiff admit-
ted that the note was given for an invalid consideration, and that
he knew it at the time he traded for it, and plaintiff does not ex-
pressly deny making these admissions, he cannot recover upon
the note without showing a valid consideration as between the
maker and the payee, though the plaintiff paid a valuable consid-
eration for the note. Id.
22. In a suit against an executor upon a note of the decedent, a
judgment that "the plaintiff have and recover from the defend-
ant," is not a proper judgment. The judgment should be that
plaintiff recover against the defendant as executor of the last
will, &c., of the testator to be made out of the goods, etc., of the
estate of the deceased, and that he have execution thereof, and
not against the defendant generally. Id.
23. Administrators loan funds, assets of the estate they represent.
In a suit by them in their representative capacity as administra-
tors to recover the money the defendant cannot set off the value
of his services rendered the estate at the request of the adminis-
trators. Unless specially authorized by law the administrators
can make no new contract binding the estate. The remedy of
the party contracting with them is personal against them and the
judgment in such a suit is to be satisfied de bonis propriis.
L'Engle vs. L'Engle & Hartridge, Administrators, 714.
24. The administrator of an estate is under no obligation, legal or
equitable, to a person who is neither a debtor to nor creditor, nor
heir nor vendee of the intestate, and who is a stranger endeavor-
ing to acquire title to land claimed by the administrator to be-
long to the estate; such claim of the stranger to the land being
by virtue of a contract of sale with a third party having no title
against the estate. Knox, Commissioner, vs. Spratt et al., 817.
25. The institution of a suit, as to persons not parties claiming inde-
pendent rights, is effective only as a lis pendens. Whatever may
ADMINISTRATORS AND EXECUTORS—(Continued.)
be the ultimate decree therein rendered, it is not binding upon
independent and other rights asserted between persons not par-
ties to the litigation. Quere: Whether a court of equity will,
in a suit by the heir against the administrator, to which the
creditor of the estate is no party, arrest proceedings in the
County Court looking to a sale of lands of the estate to pay the
alleged debt of the creditor, (which proceeding has progressed to
a sale and report by a commissioner of a bid,) and transform the
proceeding into one for the sale of land for distribution upon the
ground that there is no debt due the creditor. Id.
26. The relation of an attorney of the creditors of an estate is incom-
patible and inconsistent with the relations of administrator of
the same estate. His duty to the creditor, his client, is to en-
force the creditor's claim. His duty to the heirs is to resist the
claim if there is legal grounds for so doing. The occupying
these inconsistent relations by the same person, however, is no
ground of equity in behalf of a third party to whom neither the
administrator nor the estate is under any obligation, legal or
equitable. Id.
I. Of Pleadings and Proceedings. See Practice, (Law) 3.
II. Of Statutes. See Constitutional Law, 2, 3; Statutes, 7.
APPEALS. See Arrest of Judgment, Attorney-at-Law, 3; Criminal
Law, 1; Decrees and Judgments, 2;Writ of Error.
I. The provisions of the acts relating to appeals from judgments of
Justices of the Peace, so far as they provide for a trial de novo in
the Circuit Court, are in conflict with the Eighth Section of Ar-
ticle 8 of the Constitution, and void. State ex rel. vs. Baker, 19;
State ex rel. vs. Vann, 29.
2. The jurisdiction of the Circuit Court in such cases is appellate
only.
3. A trial de novo, or new trial, is the exercise of original jurisdic-
tion; and in cases at law, where the amount in controversy
does not exceed one hundred dollars, the Circuit Courts have no
such jurisdiction.
4. An appeal from the judgment of a Justice of the Peace has only the
effect of a common law writ of error. Id.
5. Upon the hearing of a second appeal by parties plaintiff and de-
fendant, matter not brought up by the first appeal, and which
was not the subject of review upon that appeal, may, upon the
second appeal, be assigned as error in a case where the judgment
upon the first appeal was a general reversal of the judgment
awarding a new trial. M. L. & B. Association vs. Price, 127.
6. Where there is an appeal by each party from an entire judgment,
and not from a judgment for different things separable in their
nature and separated in the judgment of record, and the action
of the court and referee is found to be correct as to the errors as-
signed upon one appeal, but incorrect as to matters involved
in the other, the judgment to be rendered here is one of general
reversal awarding a new trial. Id.
7. When the Judge signing a bill of exceptions attests that a general
exception was taken to the whole charge to the jury, and no spe-
cific exception was taken to any paragraph, the court on appeal will
not notice errors in the charge not specifically excepted to, unless
the charge is erroneous as a whole. Parties should point out to
the Judge the portions excepted to before the jury leave the box.
Jenkins vs. Lykes & Barco, 148.
8. When a final decree of divorce is sustained upon appeal, an inter-
locutory order made on filing the bill, restrainig the defendant
from interfering with or molesting the complainant and his family
during the pendency of the suit, and in nowise affecting the de-
cree, which order is alleged to be irregular, will not be reviewed.
If such order was irregularly made the final decree will not be re-
versed for that reason. McGill vs. McGill, 341.
9. Under the statutes regulating appeals in causes an appeal “taken
within the time fixed by law in other cases," and giving bond to
pay the debt, damages or condemnation and costs, approved by
the Judge or Clerk, does not operate as a supersedeas except to a
decree where the amount of the "debt, damages or condemna-
tion" is mentioned in the decree. In other cases the supersedeas
must be allowed by the Judge of the Circuit Court or a Justice
of the Appellate Court. Id.
10. Where an appeal is obtained and entered within thirty days before
the first day of the next term of this court it is returnable to,
and should be docketed on such day, in such next term, as will
admit of twenty days' notice of such appeal being given, and the
transcript of the record of the decree must be filed on such day
or the appeal may be dismissed as provided by section 4 of the
act of February 10, 1832 Twenty days' notice of appeal is the
time required in such cases. When docketed the case stands on
the calendar for hearing as other cases. Sections 3 and 4 of the
act of February 10, 1832, regulating appeals to the Supreme
Court, construed. Randall et al. vs. Jacksonville Street R. R. Co.,
409.
11. On a motion for a rehearing in this case, the attention of the court
from the first time being called to the fact that no final judgment
is found in the record, such point not having been made in the
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