Graham v. Lockhart. We are satisfied this is the proper consideration to be given the subject and it seems the only one which will enable the true merits of a conveyance to be put before a jury, in a contest between a creditor and one claiming under the deed. 11. With regard to the objection, that the notes and other evidences of debt were not produced, or their absence accounted for, there is a different and sufficient answer. It is obvious, that neither the trustee, nor the debtor's sureties, have the control of the notes, &c. described in the deed. We do not know from the bill of exceptions, whether it was the sureties or the creditors, who availed themselves of the provisions of the deed, and if it is the former, as seems most probable, no suspicion arises that the originals were withheld from any improper motive. It is very questionable if the trustee or the sureties could compel the creditors to produce the notes held by them, to be used in this suit, (Bell v. Lorilard, 10 Pick. 9 ; Mills v. Oddy, 6 C. & P. 728; Scheleneker v. Maxey, 3 B. & C. 789;) though it is said this is rather the privilege of the witness than of the party. [Mills v. Oddy, supra.] But, however this may be, we think, on other and more general grounds, there was no necessity to produce the notes. The general rule is, that when the writing is the exclusive medium of proof, it must be produced or its absence accounted for. [See cases collected in Cowan & Hill's Notes, 1208.] Here the fact to be proved, is the indebtedness of the grantor, or that the sureties named stood in that relation to him, and both these may as well be proved orally, as by the production of the writing. Indeed, it will admit of question, whether the production of the notes, without further proof, would be sufficient to establish either fact, on account of the facility with which such evidence might be fabricated. In Lamb v. Maberly, 3 Monroe, ; the action was for the price of a note, sold by the plaintiff to the defendant, and it was held, evidence might be given of the sale, without producing the note. In Spears v. Wilson, 4 Cranch, 398, evidence was given of a deed of slaves, without producing it, to show the nature of the possession which accompanied it. These cases seem to recognize the rule just stated, and as there is nothing to authorize the inference, that the notes themselves could be procured, or were within the control of the party offering the evidence, we think the objection cannot be sustained. Graham v. Lockhart. 12. The next question is that which relates to the exclusion of evidence of the admissions of the trustee, with respect to the deed. What those admissions were, we are not informed, but the inference is, they were offered to defeat the deed, and in this view, we think the evidence inadmissible. The English Courts seem generally to maintain, that the admission of the plaintiff on the record is always evidence, though he be but the trustee for another. [Craib v. D'Aeth, 7 Term, 670, in note; Bauerman v. Radenius, ib. 663.] In the latter case, Mr. Justice Lawrence said he had looked into the books, and could find no case in which it had been held, that an admission by the plaintiff on record was not evidence. To permit a mere nominal party to defeat a suit by his admission, and yet refuse the same effect to his release of the action, seems to involve a contradiction of principle. However this is, it is certain the English Courts have held the latter doctrine. In Payne v. Rogers, 1 Doug. 407, where the defendant had procured a release from the nominal plaintiff, the Court ordered it to be delivered up, and permitted the real plaintiff to proceed with the action. And a nominal plaintiff in ejectment, has been committed for a contempt, upon releasing an action. [1 Salk. 260.] On the other hand, it is said, in Buller's Nisi Prius, 233, that the answer of a trustee can, in no case be received against the cestui que trust, and it has also been held, that the admissions of neither guardian, or prochein ami, can be received against an infant. [Cowling v. Ely, 2 Stark. Ca. 366; Webb v. Smith, 1 R. & M. 106; to the same effect is Isaacs v. Boyd, 5 Porter, 388.] In many of the Courts of this country, a rule different from that usually recognized in England, has obtained very generally; and the party having the beneficial interest in a chose in action, is not affected by the admissions, or release, of the nominal plaintiff. [See cases collected in Cowan & Hill's Notes, 163; Chitty on Bills, 9, note 1.] In conformity with the general current of decision, we held, in Chisolm v. Newton, 1 Ala. Rep. N. S. 371, that the admission of the nominal plaintiff, made after the commencement of the suit, could not be given in evidence to defeat the action. And in Duffee v. Pennington, ib. 506, as well as Prewit v. Marsh, 1 S. & P. 17, it was considered the nominal plaintiff might be called as a witness by the defendant and sworn, if he made no objection. Duffee, Adm'r, v. Buchanan and Wife. It is true that most of the American cases are upon assigned choses in action, but the principle on which they proceed is, that one having no interest in the suit, ought not to be permitted to defeat or affect it, by his admissions; this seems equally applicable to a trustee, who is invested with the legal title to a specific chattel, solely for the benefit of others. Whether the claimant, under the circumstances of the case, might have been called as a witness, it is not necessary to determine, but we may be permitted to remark, that independent of his relation to the cause, as a party upon the record, there seems no objection on the score of interest. [12 East, 250; Duffee v. Pennington, 1 Alabama Reports, N. S. 506; Mann v. Ward, 2 Atk. 229; Hall v. Tyrrel, Bard. K. B. 12; Goss v. Tracey, 1 P. Wms. 290; Craft v. Pyke, 3 ib. 181; Philips v. D. of Bucks, 1 Vern. 230; 1 P. Wms. 595; Ballew v. Russell, 1 B. & B. 99.] 13. The deed authorizes the trustee to apply the proceeds of the crop of the year, when it was made, to the payment of the then subsisting judgments against the grantor. The circumsance, that these were afterwards superseded by writs of error sued out by him, and subsequently paid by the trustee, was proper evidence to rebut any presumption of fraud arising out of the omission to show what had been done with the property. From what we have said, it will be seen that we consider the case as free from error, in all the points presented. Judgment affirmed. DUFFEE, ADM'R, v. BUCHANAN AND WIFE. 1. A testator declared in his will, that certain property "shall be equally divided between my mother and my two sisters, H. and M." Held, that the meaning of the will was, that each was to have one third part. 2. An administrator is chargeable upon his settlement, with the amount of a note due by him to his intestate, as money in his hands. 3. An administrator may subject himself to be charged with the notes of third persons, as assets, upon proof of neglect or mismanagement; and 8 27 97 510 8 271 di21 74 Duffee, Adm'r, v. Buchanan and Wife. when the record recites, that the Court, upon the proof adduced, was satisfied he was chargeable with such notes, it will be considered in this Court, that the proof was sufficient, if no objection was made to it in the Court below. 4. The administrator having appeared in obedience to the citation, is affect ed with notice of all the subsequent proceedings. Error to the Orphans' Court of Tuskaloosa. THIS was a proceeding, upon the final settlement of the estate of Seaborn P. Gillespie, of which the plaintiff in error was administrator, with the will annexed. The will is as follows: First-It is my will and desire, that the proceeds of a promissory note, due me from Matthew Duffee, amounting to eight hundred dollars, or thereabouts, and another for about two hundred dollars, shall be equally divided between my mother, Margaret Gillespie, and my two sisters, Harriet Williams and Mary Gillespie. Second-It is my will and desire, that my mother and sisters, above named, shall receive the amount of a debt, due me from William McGuire, amounting to about thirty dollars, and also the amount of a debt, due me from Mr. Samuel, amounting to about five dollars, to be equally divided between them, as above named. Third-It is my will and desire, that my mother and sisters, above named, shall receive a certain horse of mine, now in the possession of Wm. Robinson, (after deducting the value of his keeping,) also, a sulkey, to be divided between them as aforesaid. Fourth-It is my will and desire, that my other little debts. and property, which I may have, after the same is arranged and settled, shall be given as aforesaid, to my mother and sisters. Fifth-It is my will and desire, that Matthew Duffee, should be allowed, as a set off to the amount due me, for the rent of my house, any sum he may have expended in putting additions to said house. On the 19th April, 1844, the following order was made: It appearing to the satisfaction of the Court, that Matthew Duffee, administrator of the estate of Seaborn P. Gillespie, deceased, Duffee, Adm'r, v. Buchanan and Wife. has made no settlement of his accounts, as such administrator: it is therefore ordered, by the Court, that a citation issue, to said Matthew Duffie, to appear before this Court on the second Monday in May next, to file his accounts and vouchers, and make settlement of the said estate. At the return of the writ, Duffee appeared and presented his account and vouchers, for a settlement, and the Court received, audited and stated said account, and reported the same for al lowance, at a term to be held on the second Monday in August next, after, and directed publication to be made. On the second Monday in August, 1844, a decree was rendered as follows: Be it remembered, &c. that at this term, came up for a final settlement of the estate of Seaborn P. Gillespie, deceased, the accounts and vouchers of Matthew Duffee, administrator of said estate. The account having been audited, &c., heretofore, and due notice thereof given, as required by law, the Court proceeded to consider the same, and the exceptions thereto. It was objected, that as the account took no notice of the two debts stated in the will, to be due from the administrator to the testator, and one also due from Moses McGuire, said account was not correct, and the Court, upon the proof adduced, being satisfied that said amounts should be charged against said administrator, as well as the amount of two hundred and eighty three dollars and fifty cents, in said account stated, and after deducting the amount charged, $293 88, and $100 to the administrator, for his services, and $42 57 Court charges, there is left, calculating interest from the time of testator's death, on the sum of $1,020, which remained after deducting charges, from the credits of the estate, said testator having died 26th February, 1834, the sum of $1,717 43, to be equally divided, according to testator's will, between his mother, Margaret Gillespie, and his two sisters, Harriet Williams and Mary Gillespie. The sum of five hundred and seventy-two dollars thirty-seven cents, is hereby decreed to be the distributive share of Harriet Williams; and it appearing to the Court that Margaret Gillespie departed this life, before this settlement, and that David Johnson is her administrator, it is hereby decreed, that $572 is the distributive share of said Johnson, as administrator. It is hereby further decreed, that $572 is the distributive share of E. Buchanan and Mary his wife, formerly Mary Gil |