Williamson, Ad., v. Doby, Ad., Etc.

HARMSON, J. The depositions objected to by the plaintiff tended to prove the facts alleged in the answer, and were properly admitted to be read.

Doby was not a party to the suit of Billings against Williamson in South Carolina; and the certified copies of the decree, and of the opinion of the supreme court of the state, in that case, offered by the plaintiff, were not, therefore, competent evidence, nor had they any relevancy whatever, and were rightfully rejected.

The evidence sustained, we think, the answer and the finding of the court.

The fact that Miller lived in South Carolina and Doby in Arkansas, and that the instrument was made payable one day after date, and the other admitted facts in the case, were strongly corroborative of the testimony of Doby, that it was given only as an acknowledgment of his liability to Miller on account of the surety debt he had paid for him, and with the understanding that it was to be a credit in the settlement between them in respect to his legacy or portion in his mother's estate, and not as an absolute obligation. Such being the case it was a fraud in Miller, contrary to the intent and understanding with which he received it, before such a settlement, to assign it. It was an attempt by him to take undue and unconscientious advantage by a breach of the confidence reposed in him. 1 Story's Eq., sec. 187.

And having been assigned after maturity, the plaintiff had no better right to sue on it than Miller had before the assignment.

If, however, upon a settlement hereafter, it should be found that Miller is not indebted to Doby's estate, or not to the amount specified in the instrument, the plaintiff will be entitled to whatever is due upon it, as he stands in

Williamson, Ad., v. Doby, Ad., Etc.

the position of assignee of whatever right—legal or equitable-Miller may have had in it. The plaintiff should not, therefore, have been perpetually enjoined from suing on the instrument, but his action should have been abated or dismissed without prejudice to his right to bring another suit, if upon settlement between Miller and Doby's representative, it should be found that anything was due Miller. The decree must be reversed, and a decree will be rendered here as above indicated.

END OF NOVEMBER TERM, 1880.

INDEX.

ACCOUNT.

See PRACTICE IN CHANCERY, 2, 4.

ACTION.

See ADMINISTRATOR AND EXECUTOR, 3. LANDLORD AND TENANT, 3.
SLANDER, 1. PARTIES, 1. EJECTMENT, 1. JUDGES, 1.

1. TRESPASS: Injury to partnership mill on homestead of one partner.
Partners in a mill situated on an unperfected homestead of one of them,
have such an interest and possession as entitle them to a joint action for
damages against a railroad company for obstructing the mill race in the
construction of its road-bed. Hot Springs Railroad Company v. Ty-

ler.

205

2. LEE COUNTY: Its indebtedness to parent counties-how recovered.
The counties contributing to the territory of Lee county have no cause
of action against her for her proportion of their respective debts until
the proportion has been fixed as prescribed by the statute creating Lee
county; and, if her county court fails to do its duty in fixing her pro-
portion as prescribed by the statute, it may be compelled to perform it
by mandamus. When the debt is fixed it becomes a debt to the old
county, and not to the creditors. And if in acting, its decision be
wrong, it can be corrected by appeal to the circuit court.

The liability of Lee to the old counties is not by contract, but by the will
of the legislature; and they must pursue the course prescribed in the
act, and Lee county will be held to a fair and reasonable performance
of the duties imposed upon it. Monroe County v. Lee County. 378

ADMINISTRATION.

1. Notice of administrator's settlements.

All persons interested in the settlement of an administrator are charged
with notice of its filing. Jones et al. v. Graham et al.
383

2. Jurisdiction in probate court exclusive.

That there is no administrator upon an estate of a deceased debtor, and
the sheriff refuses to administer, and the plaintiff-creditor is a non-resi-
dent and can not administer, afford no grounds for chancery to assume
jurisdiction to administer the estate. The probate court has exclusive
original jurisdiction, and the sheriff may be compelled to administer.
No court can collect and distribute the personal effects of an estate
without an administrator. Flash, Lewis & Co. v. Gresham.

529

ADMINISTRATORS AND EXECUTORS.

See PROBATE COURTS, 1. CHANCERY JURISDICTION, 4.

1. ADMINISTRATOR: Not to be credited with lost notes.

The destruction or larceny of notes belonging to an estate, does not entitle
the administrator to a credit for them. They may still be sued upon as
lost instruments, and collected. Williams v. Cubage.

307

2. SAME: Commissions allowed in circuit court on appeal.
Upon appeal in the circuit court from a probate court confirmation of an
administrator's account of settlement, he may be allowed commissions,
though he credited himself with none in the account, and none were
allowed by the probate court.

Ib.

3. ADMINISTRATOR DE BONIS NON: Action against former administrator.
An administrator de bonis non can not sue a former administrator for
Ib.

4.

waste.

ADMINISTRATOR: Laches in collecting note secured by his intestate.
An administrator owning a note upon which his intestate is surety, is
clothed with a trust that binds him to reasonable diligence to collect it
from the principal; and if he willfully omit to collect when he can,
and the principal afterward become insolvent, the estate will be dis-
charged from the debt. Jones et al. v. Graham et al.

5. SAME: Credit for confederate money.

383

An administrator should be credited in his settlement with the amount of
confederate money received by him for the estate when current, and left
on his hands after the war.

Ib.