Falls vs. Griffith, adm'r.

gation in this bill would be good at common law, and we hold it not good in this case, the liability being but contingent at most; and notwithstanding the alleged insolvency of Mrs. Elizabeth Woods, the administratrix, she must be presumed to have given sufficient security for the faithful administration of her husband's estate. At any rate, if the security already given be inadequate, it can be made good, or she removed from her trust, and the property taken out of her custody.

Judgment reversed.

GILBERT E. D. FALLS, plaintiff in error, vs. JOHN M. GRIFFITH, adm'r, defendant in error.

It is not necessary to the validity of a claim of land at executors or administrators sale, that bond and security should be given.

Claim, from Fannin county. Decided by Judge RICE, NOvember Term, 1857.

This was a claim for a lot of land. When the case came on, the administrator moved to dismiss the claim on the ground that no bond and security had been given. The Court held that it was incumbent on the claimant to file a bond as well as affidavit, which it was admitted had been filed. Claimant's counsel then offered to prove that he, claimant, was under the age of 21 years, but had since attained that age, and moved the Court to permit the claimant then to file such bond as the Court held to be necessary. The Court overruled the motion holding that if an insufficient bond had been filed it might have been amended, but

Falls vs. Griffith, adm'r.

no bond having been filed the Court had no discretion in the matter; and to this decision claimant excepted.

MARTIN, for plaintiff in error.

CHASTAIN & UNDERWOOD, contra.

By the Court-MCDONALD, J. delivering the opinion.

As we reverse the judgment of the Court below, on the ground that said Court erred in deciding that a claimant of ' land advertised for sale at administrator's sale, must give bond and security as in cases of claims of property levied on by attachment or execution, it will be unnecessary to consider the other ground of error assigned in the bill of exceptions.

The right to claim land advertised for sale at executors or administrator's sale is the creature of a statute. The statute authorizing it, requires the claimant, by himself, his agent, or attorney, to file with the Ordinary, such claim on oath; and to serve a copy on the executor or administrator, previous to the day of sale. This is all that the statute requires of the claimant. It is made the duty of the clerk (now the Ordinary) to transmit the claim to the next Superior Court of the county where the land lies. No bond is required, and we have no power to annex to a claim of this sort, a condition that a bend must be given, merely because the Legislature has made the giving a bond and security, a condition to a claim of another description.

The statute requires that the right of property in such cases shall be tried upon an issue made up, in the same manner and under the like regulations, restrictions and penalties as are laid down, in the Judiciary Act, for the trial of the right of property levied on under executions. This clause of the act has reference to the trial of an issue made up on a claim already regularly filed under the statute. It may be tried as prescribed, without a bond, and it is not to be inferred, neces

Camp vs. Bancroft, Betts & Marshall.

sarily, that a bond must have been given. If damages are given on the trial against the claimant, on the value of the property claimed, as a penalty for making an unfounded claim, the only difficulty is, that the executor or administrator has no security for their payment, except the responsibility of the claimant.

Judgment reversed.

NATHAN F. CAMP, plaintiff in error, vs. BANCROFT, BETTS & MARSHALL, defendants in error.

In Equity, from Butts county. Decided by Judge CABINESS, at July adjourned Term, 1857.

Nathan F. Camp executed a mortgage of two slaves to Bancroft, Betts & Marshall, merchants of the city of Charleston, South Carolina, to secure two promissory notes given by said Nathan F. and his brother, James B. Camp. The mortgage bears date 7th January, 1856. The notes are of the same date, and one for $535 56, due ten months after date; the other for $1383 39, and due 1st May, 1857.

Before these notes became due, Bancroft, Betts & Marshall, apprehending that the negroes mortgaged would be removed from the State and their debts lost, filed their bill of quia timet against Nathan F. Camp, the mortgagor, and prayed that he might be required to give security for the production and forthcoming of said slaves to answer complainants' demands. The bill was sanctioned by the Chancellor, and Camp ordered to give the security prayed for. This bill was filed and sanctioned 1st July, 1856.

About the same time, Nathan F. Camp filed his bill against Bancroft, Betts & Marshall, alleging the foregoing facts, and

Camp vs. Bancroft, Betts & Marshall.

claiming that the large note, for $1383 39, mentioned in said mortgage, was given and executed by himself and his brother, for and in lieu of two other notes, then held by Bancroft, Betts & Marshall, against said James B. Camp, and which notes they agreed to deliver to him, Nathan F., but which they have failed and refused to do, and complainant thereby prevented from collecting, or taking any steps to collect said notes; whereby he has been greatly damaged, and prays that said defendants be enjoined from negotiating said note against him and his brother, and that the demand of said Bancroft, Betts & Marshall be abated or reduced an amount equal to said two notes which they represented they held upon said James B. Camp, and which they agreed to deliver to complainant as aforesaid.

At the July adjourned Term of Butts Superior Court, complainant moved to amend his bill, by alleging that since the filing of his original bill, Bancroft, Betts & Marshall have taken steps to foreclose their mortgage and have caused a fi. fa. to issue, which has been levied upon the negroes mortgaged; that defendants reside beyond the limits and jurisdiction of this State, and complainant can have no adequate remedy against them except by obtaining a credit here, upon their demands, for the amount of damage he has sustained by their actions and refusals in the premises. That said notes of James B. Camp, have never been returned or delivered to him, and from all the circumstances he does not believe said notes ever existed; and prays that defendants be enjoined from collecting so much of their demand as is equal to said notes, to-wit: $1383 39; and from collecting and enforcing their said mortgage fi. fa. to this amount.

Counsel for defendants objected to the amendment. The Court, after argument, sustained the objection and refused to allow the amendment, and counsel for complainant excepted.

D. J. BAILEY, for plaintiff in error.

JNO. J. FLOYD, contra.

Walker vs. Walker, adm'r, &c.

By the Court.-BENNING, J. delivering the opinion.

The matter of the proposed amendment, was matter of "substance." The amendment act of 1854, says, That "plaintiffs and defendants," "whether at law, or in equity, may in any stage of the cause, as matter of right, amend their pleadings in all respects, whether in matter of form, or matter of substance."

This plaintiff, then, we think, had the right to add the proposed amendment, to his bill.

Judgment rever sed

NATHANIEL F. WALKER, plaintiff in error, vs. JAMES S. WALKER, adm'r, &c., defendant in error,

[1.] Where there is a conflict of testimony and a portion being disregarded, for want of credibility in the witness, it being apparent that they were incapable from nonage to understand the facts about which they testify, and the balance preponderates in favor of the verdict, it is not error in the Court to refuse to grant a new trial, on the ground that the verdict was contrary to the evidence.

[2.] The failure of the representatives of an estate to inventory and sell a portion of the property found in possession of their intestate, at his death, but claimed by a third person, ought not to prejudice the title of the estate; provided the circumstances were such as satisfactorily to account for the omission.

[3.] If one, by his will, undertakes to dispose of property claimed by another, and in his possession, the will is no evidence of claim until its publication; no knowledge of its contents being brought home to the opposite party. Neither can the inventory and appraisement of such property, by the executor, be given in evidence in support of his testator's title; suit having been brought within five years from the death of the testator.

[4.] If a trustee collude with a third person, to defraud his cestui que trust, the statule of limitations does not begin to run until after the fraud is discovered.

Trover and new trial, from Upson Superior Court. Decided by Judge CABINESS, November Term, 1857.