defendant se hunde

their ferd

V.

MARCA, the bail. The clerk's doing more than was necessary, by 1814.

setting forth the words of the written return, cannot invaliHenry

date the bond; for it is a maxim, that “ utile per inutile

non vitiatur.” Green.

The thing chiefly important is, that the sheriff should re-
(a) Shelton
vs. Pollock in turn the bail-bond, or a copy thereof.(a) When the bond itself
Co. 1 H. & M. is returned, more is done to bind the bail than when his
422.

name only is endorsed on the writ. In the latter case, the
circumstance, that no bond is returned, affords strong ground
for presuming that the sheriff has made a false return;
and, in fact, the bail cannot be bound but by a bond ; where.
as, in the case where the bond itself appears, it is not to be
piresumed a forgery: neither ought the sheriff's neglect of
duty in another particular to impair the obligation of the
bail, when it plainly appears that he has bound himself un-
der his hand and seal..

Wickham, in reply. The certificate of the clerk, that the paper returned with the writ was a bond, is not sufficient to make it one. He had no right to say any thing more, than that it was a writing purporting to be a bond. It might not have been genuine; or it might have been given provisionally: the sheriff might have kept it to see whether the plaintiff would approve of it. His return, that the defendant was in custody, was inconsistent with the bond.

It is true that he could have amended his return; but he has not done so. The plaintiff should have moved the court

to permit him to amend; but this he failed to do. Shelton vs. (6) 1 1. & Pollock & Co.(6) was not so strong a case as this : for in that M. 422.

case there was no contradiction between the return and the
bond,

Saturday, March 19th, 1814. Judge Roane pronounced the court's opinion, “ that, the sheriff in this case not having returned that the plaintiff was bail for the appearance of the said James Ryburn, the judgment of the County Court is er. roneous as to the plaintiff in error.”

Both judgments reversed, and judgment entered that the

ary, by

alance, 1814.

defendant in error recover against the said James Ryburn(1)
one hundred and thirty pounds, the damages by the jury in
their verdict assessed, and his costs by him about his suit in
the said County Court expended ; and further that the plain-
tiff in error recover against the defendant his costs by him
expended in the prosecution of his writ of supersedeas in
the said superior court of law, as well as his costs in this
court.

Henry

y, Green

Hendren against Colgin.

Argued Thursa day, February

24th ; & re-arON the motion to Hanover County Court, of Patrick

gued Saturday, Hendren, executor of William Drinkard, who was the hus- March 12th,

1814. band and administrator of Sarah Drinkard, deceased, for a certificate for obtaining letters of administration de bonis non, death of a husa

1. Upon the of her estate, William R. Colgin, who intermarried with Sarah band, who sur

vived his wife, 1. F. Ellyson, one of her children, opposed the said motion, and adminis. and moved the court to grant the administration to him. tered upon her

estate, his exThe court over-ruled the motion of Hendren, and granted ecutor, (or, it that of Colgin, who thereupon gave bond and security accord- seems, his ad.

ministrator,) is ing to law. Upon an appeal by Hendren, the judgment of entitled to be

administrator the County Court was affirmed by the Superior Court of de bonis non of

the wife, in law; whereupon he appealed to this court.

preference to

her next of kin. Wickham for the appellant. The case of Cutchin v. Wilkinson, 1 Call 1, is decisive in favour of Hendren. The too, that his

executor is enprinciple intended to be settled by it being, that the person titled, in preentitled to the estate is entitled to the administration ; from ference to his

residuary legawhich it follows that the executor of the husband, where he tee.

2. It seems,

(1) Munford suggested to the court the propriety of entering the judgment against the defendant and the sherif; that officer having made himself liable by failing to make a proper return of the writ. But the court said that this could not be done, without giving the sheriff an opportunity of defence; and that, if the return was incorrect, the proper remedy of the plaintiff was by action against the sheriff

FEBRUARY, survives the wife, is entitled to the administration of her 1814.

estate, in preference to her next of kin. Hendren

English authorities are express upon the point. The cases

of Squib v. Wyn,(a) Rex v. Bettesworth,(6) Thomas v. ButColgin.

ler,(c) Bouchier v. Taylor,(d) Brown v. Shore,(e) Elliott v. (a) 1 P. Wms. Collier, (5) Humphrey v. Bullen,(5") and Bacon v. Bryanty(t) 378. (6) 2 Stra.

are all to a similar effect; shewing that administration of 1111. (c)1 Ventr. 219. the wife’s'estate is to be granted to the husband in the first (d) Hargs, Law place; and, upon his death, to his representative; that is, to Tracts, 472-4 -5.

his executor or administrator, or, if he had none, then to his (e) i Shower

next of kin. 25. 26. (f) 3 Atk. 526; I admit, that if Mr. Drinkard the husband had died intesi Wils. 169, S. c. See also i tate, and no person had administered on his estate, his next of Bac. 480. kin would have been entitled to administration of the wife's ($) 1 Atk. 458.

11 Viner estate :—but why ?-because, in such case, he is entitled to 87. pl. 25.

be the administrator of the husband, and, as such, to adminis.
ter on the wife's estate.

Williams,contra. All the cases cited go to shew this proposition, that the administrator de bonis non of the wife, is a trustee for the next of kin of the husband; but not that the executor or administrator of the husband is entitled to be administrator of the wife. The rule is not true in all cases, that the person entitled to the estate is entitled to the administration. The case from Hargrave's Tracts, if I understand it, is rather an authority for me than against me.

In Cutchin v. Wilkinson, the point now in discussion was loft undecided; but the administration was granted to the next of kin. It does not appear in this case that Mr. Drinkark left any relation.

Wickham in reply. Mr. Williams has misapprehended the cases. They do not go merely to shew that the wife's representative is trustee for the next of kin of the husband ; but that the person entitled to the distribution is entitled to the administration. Toller concurs fully with these authorities.

I agree, it does not appear that Drinkard left any next of kin :--and this is conclusive in my favour. His executor

;

v.

2

(since he left a will) is entitled to the whole of his personal FEBRUARY,

1814. estate ; of course, to that right which, as surviving husband, he had to the estate of his wife ; and is therefore entitled to

Hendren be administrator de bonis non of the wife's estate.

Colgin. Saturday, March 19th, the following opinion of this court was delivered by Judge Roane.

In the case of Cutchin v. Wilkinson, Willis Wilkinson hav. ing died intestate, leaving a widow and three children, and these children having also died, infants and intestate, in the lifetime of their mother, that mother administered upon the estate of her husband, and died leaving a will, in which she appointed executors. On her death, a contest arose, for the administration de bonis non of his estate, between the brother of Willis • Wilkinson, and the brother of his widow. To this contest her executors were no parties. In that case, although is was objected that the estate of Willis Wilkinson had not vested absolutely in the widow, but had only vested in her as administratrix of the husband for the payment of his debts, the objection was overruled by this court ; the property was considered as her's, subject, however, to the debts of her husband; and it was consequently held, that his brother, being in no event entitled to the property, was not entitled to the administration. The court, (not deciding the ease as between Cutchin, the brother of the widow, and her executors, but considering the case as if there had been no such executors,) granted the administration to Cutchin : they granted it expressly upon the principle, that the person entitled to the estate was entitled to the adıninistration also.

That case, admitting the husband in the case before us to be as much entitled to the estale of his wife, as Mrs. Wilkinson was to that of her husband, is a direct authority against the pretensions of Mrs. Colgin, considered in her character of next of kin to her mother. But there is another character, which (for any thing appearing in this record,) she may possibly occupy; and that is as a distributee of the husband, under the last sentence of the 14th section of the act of descents: and the only question, now open for

v.

FebruarT, the consideration of the court, is, whether the administra. 1814.

tion de bunis non of the wife, her mother, is to be granted to

her in this last mentioned character, or to the appellant, the Hendren

executor of the husband, who survived her, and administer. Colgin.

ed on her estate? .a question not decided in the case of Cutch-
in y. Wilkinson,

The principles of that case, however, go the full length of
deciding the present controversy. If, in that case, the pre-
tensions of Mr. Wilkinson, the brother of Willis Wilkinson,
were reprobated, on the ground that he was not entitled to
distribution of the estate in controversy, that principle equal.
ly excludes Mrs. Colgin, considered in the character of a re.
presentative of Mr. Drinkard, if the interests in question
were vested in him, and have passed from her by his will.
In that event, she can by no possibility be entitled to distri-
bution of the estate in question, nor, consequently, have any
ground of claim to the administration of it. In that case, she
ceases to be a person designated by the act. She is neither
entitled to the distribution of it considered as her mother's
property, nor as his : not the former, for it vested in the hus-
band by the marriage ; nor of the latter, because she is ex.
cluded therefrom by the will. The case of Cutchin v. Wil-
kinson decided, as aforesaid, that the unadministered proper.
ty of Willis Wilkinson had passed to the wife, and became
her property, subject, however, to the payment of her hus-
band's debts. This is emphatically the case of Mr. Drink-
ard's property, in the case before us. That property vested
in her husband, by the marriage, and, as he survived her, even
lier choses in action, not reduced into possession in her
lifetime, became his property. Even those interests which
form the proper object of the administration de bonis non of
the wife, are distributable to his next of kin, and not to her's,

and pass by his will. The cases of Squib v. Wyn, 1 P.Wm8.. (a) See also $78, and Cart v. Rees, (ibid, 381.,) (a) among others, are full Ellioit v. Col.

up to this point. These interests are then, equally with his
lier, 3 pik, 527;
and i Bac. abr. own proper goods, a part of the husband's estate, subject,

however, to pay the debts of the wife ; to settle and pay,
which creates the only necessity for an administration de bonis

480.