Broughton vs. Badgett.

but no right of action on the warranty was thereby transferred--that remains with Broughton. Nor do we believe that it was necessary, that there should be a recovery upon Broughton, in order to entitle him to sue on the warranty. His rights against Badgett remain as they were, and are not affected by the new relations between himself and his vendee. A chose in action is not assignable at common law, so as to vest the legal title in the assignee. The statute of Ann makes only such securities as are payable to the order or assigns of the payee, or to bearer, negotiable. They must have negotiable words on their face, showing the intention of the makers, to give them a transferable quality.-Story on Bills, 75; 3 Kent, 77. This paper contains no negotiable words and is not, therefore, negotiable by the statute of Ann. By the act of 1799 (Prin. Dig. 426) the papers which are therein made negotiable are only made negotiable "in such manner and under such restrictions as are prescribed in the case of promissory notes." One of the restrictions prescribed by the statute of Ann is, that promissory notes must be payable to the payee's order or assigns, or to bearer. Under this view of the subject, the instrument under review is not negotiable under the act of 1799. But the court gives to that act a construction which upon other grounds wholly denies to this bill of sale and warranty any negotiable qualities. It is of opinion that it was not the intention of the Legislature to include at all, under the provisions of the act of '99, such an instrument as this. It is argued by counsel for defendant in error, that this paper being under seal is a specialty and is therefore included in the words of the act, "all bonds, and other specialties." It is not denied but that this paper is a specialty, but it is denied that it is such a specialty as was intended in the words of the statute. A specialty is defined by Littleton, to be "a bond, bill or such like instrument, writing or deed under the hand and seal of the parties." Here are two kinds of specialties according to the definition, to wit: Bonds and bills and such like instruments, and writings and deeds, both being under seal. The former class obviously includes instruments under seal for the payment of money-the latter, deeds and instruments of like character. The Legislature meant, no doubt, specialties of the former class-to which class this bill of sale does not belong, for it is not a bond or bill or other instrument to pay money-but contains title to a slave and a warranty of her soundness. The warranty assumes to pay nothing; it gives only a right of action, in which action, recovery is dependent upon proof on trial. It will not be contended that a deed is negotiable by the act of '99, and yet a deed is a specialty. By "bonds and other specialties and promissory notes and other liquidated demands," the Legislature manifestly meant "liquidated demands," and no others. This construction is drawn from the terms of the act, specifying bonds and other specialties and promissory notes, "it enumerated other liquidated demands." By which it is apparent that the securities previously enumerated, as well as those in these words embraced, are meant to be such as assume to pay an ascertained-liquidated sum of money. It is also insisted that the clause in the statute which follows, to wit: "whether for money, or other thing," is an enlarging clause, and is meant to include all kinds of papers between man and man, which the relations of society may originate. We do not think so, but believe that this clause was designed to give negotiability to notes or bonds for the payment of some

Thomas vs. Hardwick, Executor.

specific article of property. At the time the act was passed there was in the country but little money. Commercial operations were limited. The consequence was that much of the business of our State was conducted by an exchange of property; notes were then made payable in the products of the soil--as tobacco, indigo, and cotton. Indeed such notes are not uncommon at this day. To such notes and obligations this clause has reference and gives to them negotiability.

They too are liquidated demands. They are made payable in an ascertained and specific amount of property or produce, and are therefore liquidated. Under no view of the subject can we believe that the legislature meant to make a mere right of action negotiable. Mr. Broughton did not, because if desirous, he could not, endorse to Attaway his right of action on this warranty. We think the judge of the court below erred,

and that his decision in this cause must be reversed.

Act of 1799, section XXV., referred to in the foregoing decision, is as follows: "All bonds, and other specialties and promissory notes, and other liquidated demands, bearing date since the 9th day of June, 1791, whether for money or other thing, shall be of equal dignity, and be negotiable by endorsement, in such manner and under such restrictions as are prescribed in the case of promissory notes. Provided that nothing herein contained shall prevent the party giving any bond, note, or other writing, from restraining the negotiability thereof, by expressing in the body thereof such intention."-Prin. Dig. 426.

No. 14.-JAMES THOMAS, Plaintiff in Error, vs. WILLIAM M. HARDWICK, executor of Darius Gilbert deceased, Defendant in Error.

By the laws of England, as adopted in this State, an administrator de bonis non cannot call the representatives of the deceased executor or administrator to account for any property which their testator or intestate may have converted or wasted; nor can he claim or receive anything, but those goods, chattels, and credits, which remain in specie, and are capable of being identified as the property of the first testator or intestate.

Suits for assets wasted or converted, may be brought directly by creditors, legatees, and distributees.

The act of 1821, passed for the better protection of the estates of orphans and for other purposes therein mentioned, does not deprive persons interested of this common law right, but was intended to afford them additional remedies. The act of 1816 is necessarily restricted to the only class of cases to which it applies. The act of 1815, to define the rights and powers of administrators de bonis non, does not extend to suits brought and prosecuted to judgment before its passage; to make it available in cases instituted since, would it not be necessary for the removed executor or administrator, or representatives of a deceased executor or administrator, to plead and prove that he had fully accounted with the administrator de bonis non? (Quere.)

An action of debt was commenced by James Thomas against Darius Gilbert, to the February term, 1840, of the Inferior Court of Hancock County. At the August term thereafter, the death of the defendant was

Thomas vs. Hardwick, Executor.

suggested. At the August term, 1842, William M. Hardwick, as executor of Gilbert, was made a party to the suit, and pleaded plene administravit præter. At the February term next ensuing, he confessed judgment to the plaintiff for the amount of his demand with liberty of appeal. An appeal was entered. At the October term, 1843, of the Superior Court, Hardwick pleaded in abatement of the action, that since the last continuance of the cause, his letters testamentary had been revoked, and he removed from his executorship, by the court of ordinary of Hancock County. The plaintiff demurred to the plea. The demurrer was overruled by Judge Sayre, at the April term, 1846, who decided that the case was controlled by the act of 1821, which declares, that upon the revocation of letters testamentary, suits by or against the executor shall not abate by reason of the removal of the executor, but the removal being suggested of record, a scire facias may issue to make the successor a party to the suit, at any time after the appointment of the successor, and that the plaintiff was shut in to this course. He further held, that the administrator de bonis non had a right to maintain an action against the displaced executor for all the assets which had come into his hands, and that the act of the last General Assembly was only declaratory of this pre-existing right. To this opinion of the circuit judge the plaintiff excepted, and this writ of error is brought to reverse it.

JAMES THOMAS, in propria persona.

I maintain that, at common law, the administrator de bonis non can have no action against the executor, Hardwick, for anything administered by him, when the same is not as the testator left it, as when property has been changed into money, or where a waste has been committed.-Lovelass on Wills, 101; Curtis vs. Vernon; 3 T. R. 587; 1 Williams on Exrs. 594; 1 Gill and John. 270; 5 Randolph, 51; 1 Bar, and Har. Dig. 552-3-4.

Such suits for assets, wasted or converted, may be brought directly by creditors, legatees or distributees.-5 Randolph, 51; Lovelass on Wills, 392; Went. off Exr. 87. An executor, having administered, is compelled to undergo the burthen of executor, and also may be sued as executor, though he cannot sue others, because he has not the will under the ordinary seal.-Ibid.

But admitting the right of administrator, de bonis non, to bring his action against the executor removed for misconduct, yet first at common law, it is the right of a creditor, legatee or distributee to sue the executor so removed, and nothing but a plea of transfer of all the assets, to the administrator de bonis non, will discharge him; and, 2d, that after action brought, if removed, this plea will not avail the original executor. To support the first position, see 2 Williams on Exrs., 1196; Ibid. 373; Keble vs. Keble, Hob. 49. To support the 2d position, see Curtis vs. Vernon, 3 T. R. 578.

A removal is not a discharge of existing liability.-2 Bailey's Rep. 481.

Our statute nowhere declares the action shall abate; it expressly declares it shall not abate. It nowhere declares the plaintiff shall make the administrator de bonis non a party; it only declares the plaintiff may make him a party.

Our statute changes the common law, as to plaintiffs, by declaring their actions shall not abate; it gives a right to recover, in the administrator de bonis non; it does not change the common law, as to defendants, by absolving them from any fixed liability, but merely gives an additional remedy to plaintiffs, which they did not have at common law, by pursuing the fund, either in the hands of the original executor, or in the hands of the administrator de bonis non.

The statute of 1816 can have no bearing on the question, because, 1st, in the language of the statute, it does not embrace the case at bar; 2d, because, if it does embrace the case at bar, in its language or spirit, the act would be, to that extent, unconstitutional, being contrary to the title of the act. The act is "An act to autho

Thomas vs. Hardwick, Executor.

rize the several courts of ordinary, in this State, to appoint their clerks administrators, de bonis non, in certain causes."

DAWSON and MCHENRY for Defendant.

LUMPKIN, Judge, having stated the facts of the case, proceeded to deliver the opinion of the court.

We are met in limine by the assertion of the Circuit Judge that the Act of 1845, giving by implication to an administrator de bonis non, the power to call upon a removed executor or administrator, or the representative of a deceased executor or administrator, to account for assets previously wasted or converted, was only declaratory of a right previously existing. Is this so? We think not. It is needless to go into the history of administrators; suffice it to say that in this State, the power of appointing and superintending the conduct of them is assigned to our Courts of Ordinary; and that we have copied in the main, the statutes of 31 Edw. III., Ch. 2d; and 21 Hen. VIII., Ch. 3d.

An administrator de bonis non has not full, complete, and original jurisdiction. He is appointed to finish a business already begun, and in most cases partially performed. He is an administrator de bonis non administratis, viz., of the assets not already administered; like all other trustees his authority is derivative, and he cannot transcend his commission. His office, therefore, ex vitermini, confers upon him no right to sue for assets which have been previously administered. An administrator de bonis non is entitled, says Bacon, (Title Exs. and Admins. B. 2,) to all the goods and personal estate, such as terms for years, household goods, &c., which remain in specie, and were not administered by the first executor or administrator, as also to all debts due and owing to the first testator or intestate. (Salk. 306; Skinner, 143; Bos. and Pul. 310.)

Also it is holden, continues the same authority, that if an executor receives money in right of the testator, and lays it up by itself, and dies intestate, that this money shall go to the administrator de bonis non, being as easily distinguished to be part of the testator's effects as goods in specie. But if A dies intestate, and his son takes out administration to him and receives part of a debt, being rent arrear to the intes*tate, and accept a promissory note for the residue, and then dies intestate, this acceptance of the note is such an alteration of the property as vests it in the son, and therefore at his death it shall go to his administrator, and not to the administrator de bonis non, (Barker vs. Talcott, Vernon, 433; 2 Vent. 362; Rol. Ab. 380.) It would seem, then, that the only question to settle is this. What constitutes an administration of the assets so far as the administrator de bonis non is concerned? I annex this qualification to the inquiry, because to administer-so far as the administrator de bonis non is concerned-is one thing, and to administer fully, so far as creditors of the estate are interested, is quite another, and a different thing. And yet we fear that this distinction has been too often overlooked and disregarded, and has given rise to most of the misapprehensions which prevail upon this subject. To administer goods, then, is to alter, change, or convert them. Where lands and negroes are sold by order of the Court of Ordinary, or perishable property, by the act

Thomas vs. Hardwick, Executor.

of the party himself, they are administered so far as the successor is concerned. He cannot maintain an action for them; of course the predecessor is liable for their proceeds to creditors, legatees and distributees. If an executor or administrator be removed, or die, having on hand in kind a portion of the original assets, these could be sued for and recovered by the administrator de bonis non. These principles are clearly established by a train of decisions commencing several centuries ago in England, and coming down to our own time in this country, (Duce vs. Baylie, Freem., 462; 2 Lev., 100; 1 Ventr., 275; 3 Reb., 298, 427, 463, 495, 549,; 3 Bac., 19, 20; 2 Leigh, 512, 525; 1 Gill and John. Rep., 270; 9 Leigh, 580.)

Suppose the assets of the estate have been exhausted, and misapplied by the payment of debts of inferior degree before those of a superior, will it be pretended that an administrator de bonis non could maintain an action against his predecessor, or the estate of such predecessor, for this devastavit? Such a precedent or principle is not to be found.

The statute of 30 Charles II. Ch. 7, explained and perpetuated by the 4th and 5th of William and Mary, expressly declares in its preamblethat executors and administrators of executors and administrators for want of privity, were not before answerable, nor could be sued for debts due by the first testator, or intestate-notwithstanding such executors or administrators had wasted the estate of the first testator or intestate; and, to remedy this evil, it makes such second executors or administrators chargeable. How? To the administrator de bonis non? No; but chargeable in the same manner as the first executor or administrator should, or might have been; that is directly to the creditors.-Wernick's admr. vs. McMurdo, 5 Ran.; 1 Sand, 219 note E. In the Virginia case from which the foregoing exposition of the British Statutes is quoted, the Court of Appeals boldly challenge the production of a single case-the dictum of a single Judge, or the assertion of any elementary writer -that the administrators de bonis non, either at law or in equity, can support an action, or file a bill for account against the representatives of a defaulting executor or administrator. Thus stood then the English law as adopted in this country. Let us see how far the statutes passed by the General Assembly in 1816, 1821 and 1845 have affected the doctrine.

As to the first of these acts, it is enough to say, that the case under consideration does not fall within it. It provides for one class of cases only, and that is where the administrator or administrators die, and the administrator de bonis non cannot be granted from the incapa-bility of the persons applying to give the security required by law, or when the persons appointed refuse to give such security. To remedy this evil that act was passed. Should a question ever originate under the second section, its validity may well be doubted, under that clause in the 17th Section of the first article of the constitution which forbids the passage of any law or ordinance containing any matter different from what is expressed in the title thereof. What was the mischief intended to be redressed by the act of 1821? It fully explains its own object. Doubts had arisen under the previous legislation of the State as to the power of the courts of ordinary to remove executors, administrators and guardians, from their respective trusts, where the authority had not been expressly given, to the injury of the estates of orphans and the delay of justice.