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Rice v. Maxwell.

from the insolvent a promissory note for the residue of his demand. In that case it was obvious that the giving of the promissory note by the insolvent could not have affected the distributive shares of any of the creditors, but the note was held void as a fraud on the rest of the creditors.

In the case of Payne v. Eden, 3 Caines, Rep. 217, the note on which the suit was brought was given in consideration that the payee should become, under the insolvent act, a petitioning creditor for the maker. The note, as in the case at bar, was intended to secure a bona fide debt due to the payee by the maker, and the insolvent had a competent number of petitioning creditors exclusive of the payee; yet the court considered the transaction as founded in fraud, and contrary to the policy of the insolvent act. The case of Wiggin f. Wiggin v. Bush, 12 Johns. Rep. 306, is very similar to the case under examination in all of its facts. The note there in suit was given by the maker to the payee, to induce him to withdraw his opposition to the discharge of the defendant under the insolvent law of New York. In that case the defendant admitted to the payee of the note, that he had not made a fair exhibit of his effects; in this case the payee deposed that the maker had been guilty of " fraudulent and wilful concealment of his property,” a list of which he had made under oath. In either case it might have become a subject of inquiry, whether the party, applying for the benefit of the insolvent or the bankrupt law, had not committed perjury in not rendering a just account according to the oath taken by him, as prescribed by the statute. The note was declared void in the hands of an indorsee, and the court said "the transaction was, from its very nature, fraudulent, and opposed to true policy as well as the spirit of the act."

It is insisted, that, as the debt of Solomon C. Rice to the defendant in error was just, the subsequent recognition of its validity, and the express promise of the parties to pay it, were obligatory on the plaintiff in error.

In this case the action is founded on the written contracts of the parties, and not on a subsequent and distinct promise to pay a preëxisting debt of the bankrupt. It is well settled that a

a

Bullock v. Sneed.

contract, void for the illegality of the consideration, can never be rendered valid by a subsequent promise. Besides, the debt due to the defendant in error by Solomon C. Rice was annihilated by the decree in bankruptcy and his final discharge. A promise to pay this debt after his discharge was void for want of consideration. 3 Caines, Rep. 318. 2017

The ground assumed — that the issue subniitted to the jury was not whether the instruments set out in the declaration were void on account of the want or illegality of the consideration, but whether they were executed and delivered to the defendant in error, to secure the payment of a bona fide debt due by Solomon C. Rice to him prior to his discharge as a bankrupt - does not appear to be true. Some confusion exists in the record. A replication to the first plea of the defendant appears to have been demurred 10; and the demurrer was sustained, with permission to answer over. In a previous part of the record, an issue by consent appears to have been taken on the same plea. In a subsequent part, a second replication exists, to which there is neither joinder nor demurrer, and would seem to have been abandoned, as issue was taken on the only plea to which it could apply.

We will not notice the exception taken to the charge of the court as the verdict was manifestly erroneous; and for that reason the judgment must be reversed, and a new trial awarded.

ALEXANDER H. BULLOCK, Administrator of Benjamin Bullock,

deceased, vs. William M. SNEED.

An administrator has nothing to do, unless the estate be insolvent, with the realty of his intestate; upon the death of the latter, it passes at once to his

heirs. Therefore an administrator, against whom as such a judgment at law has been

obtained by a creditor of the deceased, cannot, by bill in equity, have an indebtedness of such creditor, for rent of land which belonged to the inte

Bullock v. Sneed.

tate, accrued since the intestate's death, set off against the judgment in the creditor's favor. The rent belonged to the heirs, and not to the administrator.

In error from the chancery side of the circuit court of Talla. hatchie county; Hon. Francis M. Rogers, judge.

The facts will be found in the opinion.

Acee, for plaintiff in error,

Cited 1 Story, Eq. 32; 2 Ib. 173; Ib. 898; Whitaker v. Robinson, 8 S. & M. 349; Butts v. Collins, 13 Wend. 139; Curtis v. Treat, 8 Shep. 525; De Young v. Buchanan, 10 Gill & J. 149; 1 Story, Eq. 634, 635, 636.

J. S. Bailey, for defendant in error,

Cited Duncan v. Lyon, 3 Johns. Ch. Rep. 351; Thomas v. Philips, 4 S. & M. 358.

Mr. Justice Clayton delivered the opinion of the court.

This was a bill of injunction filed in the circuit court of Tallahatchie county. It states that the defendant had obtained a judgment against the complainant as administrator of Benjamin Bullock, deceased, for about $350, and "that the defendant had previously become indebted to the intestate of complainant after his decease in about the sum of $250, for the rent of a certain tract of land;" and that the defendant is insolvent. It prays that the amount thus due for rent may be set off against the judgment. On final hearing, the court below dissolved the injunction and dismissed the bill.

A question which lies at the root of this case is, whether the rent accruing after the death of the intestate, and arising without any special contract, would pass to the administrator, or to the heirs at law. Beyond all doubt, unless the estate be insolvent, the lands pass at once by descent to the heirs at law. The rent subsequently accruing passes to the same persons, as an incident to the land. The wholc tenor of the laws on the subject of testaments and administration shows this to be the case. The

Edge o. Keith et al. administrator has in general nothing to do with the real estate. Of consequence there was no foundation for this bill. The heirs were entitled to the rent; the administrator was liable for the debt. There was no privity between them. McCoy v. Nichols, 4 How. 31.

The claim for rent could not have been made the subject of set-off at law for want of mutuality of liability; nor can it, for the same reason, form the basis of a decree in equity. The heirs and administrators, in respect to their rights, are entirely distinct.

The decree below was correct, and is affirmed.

John EDGE vs. John H. KEITH ET AL., Administrators of William

Jolly, deceased.

In an action by a surety for money paid, he must prove the original agreement

by proof of the bond or other contract; and if the fact of suretyship do not appear on the face of the bond itself, it must be proved by other means ;

and it must be shown that he became surety at the request of the defendant. But if, in such an action, the defendant allow parol proof to be made to the jury without objection, without the production of the bond on which the surety was given, it will be too late to object to the sufficiency of such

proof to establish the relation, by instructions to that effect from the court. It seems that, when proof is admitted, without objection, to the jury, it is too

late to remedy the omission to make the objection by asking of the court

instructions for the jury to disregard it. Where a surety on a forthcoming bond in the state of Georgia was sued on

that bond by the judgment creditor, and judgment recovered against him in that state, but not against the principal, and he paid the judgment, and afterwards sued the principal in this state for the money thus paid, it was held, that the record of the suit in Georgia was competent evidence in the suit in this state to prove the rendition of the judgment and the payment of the money, but not to establish the relation of principal and surety; for a judgment settles only such facts without the adjudication of which the judgment could not have been rendered ; and, in the suit against the surety in Georgia, the question whether there had been a breach of the condition of the bond, and not what relation the defendant sued therein bore to the party not sued, was the point determined.

Edge v. Keith et al.

In error from the circuit court of Panola county ; Hon. F. M. Rogers, presiding judge.

John Edge sued William Jolly in assumpsit upon this account: "1843. April 25. To this amount paid for you as your security on a judgment in the superior court of Baldwin county, Georgia, in favor of John S. Stephens, late sheriff of said county, for the use of the Central Bank, Georgia, against myself and others, $724.00.

Jolly died, and the suit was revived against John H. Keith and another, his administrators.

On the trial the plaintiff offered in evidence the transcript of the proceedings in a suit in Baldwin county, Georgia, brought by John S. Stephens for the use of the Central Bank of Georgia, against William Jolly, John Edge, and eight others. The declaration, which is in the form of a petition, alleged in substance that, on the 2d of March, 1841, the Central Bank sued William Jolly for $2500; judgment was duly rendered for that sum and interest on the 17th of Nov. 1841; a fi. fa. issued against Jolly to plaintiff as sheriff, who levied on personal property of Jolly's; whereupon Jolly, alleging the levy to be illegal, interposed his affidavit, and executed a forthcoming bond with the other defendants according to law, and thereupon the property was delivered to Jolly. The condition of the bond was alleged in the petition to be in these words: “If the said William Jolly should deliver the aforesaid property, levied on at the time and place of sale, in the event of the cause, on the ground of the alleged illegality, being overruled by the court, and not otherwise, the obligation to be void.” The petition alleged that the affidavit was held insufficient and was dismissed, and Jolly did not deliver the property levied on at the time and place for its sale, and so the bond became forfeited. The process was not served on Jolly; the other defendants served with process plead, 1. That they did not owe the money ; 2. That the plaintiff had not been damnified; 3. If so, it had been occasioned by his own negligence. The cause was subunitted to a jury, who found for the plaintiff, and a judgment was rendered accordingly; and a fi. fa. issued against all the defendants but Jolly. The record shows the payments by Edge sued for.

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