S. & I. JOHNSON, vs. JEREMIAH GAITHER. action, &c. on complying with the requisitions contained in this act, shall be entitled, &c. to the rules." The words are very broad, "Prisons and Prisoners," and these are used throughout the act. No where are the words "free white person" employed. The act therefore does not exclude free persons o. color: nor would it be just, after forcing them into Court, to withhold a privilege so important and which is granted to all others. The policy of the law appears to require no such dis crimination.

The motion is refused.-Johnson, Nott, Gantt, Richardan, Colcock, Justices concurred.

6040

S. & I. JOHNSON, S. JEREMIAN GAITHER. Defendant purchased corn of a widow who remained in possession of her deceased husband's effects, without having been ap pointed executrix or administratrix. It did not appear that he was apprized of her want of authority. Held that defendant rcas not liable, as executor de son tort.

Tus action was brought to charge the defendant as exccutor de son tort.

The plaintiff had obtained a judgment against Thomas Stewart, for eighty one dollars, in 1820. Not long afterwards Stewart died, leaving his widow on his farm, who continued in the undisturbed possession thereof for several months, when it appears the defendant purchased or got some corn from her, which he took away in his waggon, and credited the estate for the same, on a note due him by Stewart. There was no evidence of the widow having been appointed administratrix, or having been left executrix. The Circuit Court being of opinion that the defendant was not an executor de son tort, gave a decree against the plaintiff. A motion was submitted to reverse that decision.

The opinion of the Court was delivered by Mr. Justice Huger.

A very slight interference with an estate will make a stran ger an executor de son tort. (Toller's Law of Executors.) It is important to those who have business to transact with an estate,

JAMES MALCOMSON, vs. SHERARD JAMES.

to know who is authorized to act for it, without the necessity of resorting to the Ordinary's office. He who does that which the executor alone is authorized to perform, holds himself out as executor, and has no right to complain that he is so regarded: nor would it be just to permit him to throw off his assumed character at pleasure, (12 Mo. 471. 2 Black. Com. 507.) Besides, an executor may, before probate, perform every act which is incidental to the office. (Toller's Law of Executors, 45.) A stranger therefore, who sees one acting as executor, may fairly presume that there is a will, in which he is appointed executor. A stranger is not bound to enquire into an executor's title; if there be an appearance of it, it is sufficient. In the case before the court, the widow had been in possession of the plantation for months before the defendant got the corn: he and all the world had a right to regard her as an executrix; and if there has been no will, and no administration has been granted, she is crecutriz de son tort. There is no evidence that the defendant knew she was not executrix. All that has been shewn is, that he knew what every one in the neighborhood must have known, that the plantation on which she lived, had been her husband's and was a part of his estate. And had he known she was not executrix, as there is no evidence of his having been instrumental in causing her to assume that character originally, he cannot be regarded as a co-executor.

The motion is refused.-Johnson, Nott, Richardson, Col. cock, Justices concurred.

JAMES MALCOMSON, S. SHERARD JAMES, Administrator of Ed ward Ferrell.

Motion to set aside a judgment, on an affidavit of Defendant's Attorney, that Plaintiff had consented to take it, subject to the plea of plene administravit, or plene administravit præter; no such agreement appearing in writing or on the record: to which Plaintiff offered a counter affidavit. The Court refused to receive the affidavits, and motion refused.

THIS was an action of debt, on a judgment entered up 1 1822. To defeat the action, the Defendant moved to set aside.

JAMES MALCOMSON, vs. SHERARD JAMES.

the judgment, on the ground that when it was obtained, the Plaintiff consented to take it subject to the plea of plene administravit or plene administravit præter. This fact, or agreement, was not however entered upon the record. An affidavit was offered to shew that the judgment had been improperly entered up by a Clerk, in the absence of the Attorney, on professional business. The plaintiff's counsel offered to produce an affidavit, on the part of Plaintiff, that no such agreement had been made. The Circuit Court refused the motion. An appeal from that decision was submitted to this Court.

The opinion of the Court was delivered by Mr. Justice Huger.

In this case, it is contended that, in addition to the general issue apparent on the record, the plea of plene administravit was understood between the parties, to have been filed: and that therefore the judgment ought to be set aside. Of this urderstanding there is no other evidence than the averment on oath of one of the attornies employed in the original suit; and this is denied by the Plaintiff in the action. If the judgments of this Court are to be set aside thus informally, it is difficult to foresee to what lengths the Court may not be carried, or when pleadings in any case are to be regarded as complete. The rules of Court require all pleas to be regularly filed. The 6th rule declares, that no plea of plene administravit shall be admitted in any action against an Executor or Administrator, unless the Defendant pleading such plea, do file with the same, in the Clerk's office, a full and particular account of his administration, upon oath, with an office copy of the inventory and appraisement of the estate; and in this case no account, inventory or appraisement has been filed.

The Court is therefore now called upon to disregard these rules, and to open a judgment, on the ground that the plea of plene administravit had been orally pleaded; and which ought to have been noticed in the judgment. I am unwilling to countenance so great an innovation; although I cannot doubt the statement made by the respectable counsel whose affidavit has been submitted in this case. It must be apparent to all, how painful would be the duty of the Court, if it were obliged to decide between contradictory assertions or affidavits of respec

VOLENTINE, VS. BLADEN.

table members of the bar, as to the pleas that were understood by each to have been filed, in their respective cases. To avoid this, the pleas must be regularly filed, and no agreement, not in writing, can be regarded by the Court as binding, unless the parties consent thereto.

The motion is dismissed.-Johnson, Nott, Richardson, Colcock, Justices concurred.

RHODY VOLENTINE, vs. JOHN BLADEN.

A mother is entitled to recover, on a written contract made with her for that purpose, wages due for the labor of her infant

son.

THIS was an action of assumpsit, brought by the plaintiff against the defendant, founded on a written contract, whereby the plaintiff agreed to put her son, Wiley, to work with the defendant for one year: "That the said Wiley was to work as a constant hand in the field, according to the directions of the defendant, and receive one-third of the cotton and one-fourth of the grain, &c. for his services." The plaintiff proved that her son, Wiley, worked with the defendant from January until June. The defendant's council moved for a nonsuit, on the ground, that according to the legal effect of the written contract, the plaintiff was not interested; in as much as the same was inade for the benefit of her son, Wiley, and he was the only person that could sustain any injury for a breach of the contract. The presiding Judge over ruled the motion, and the case went to the Jury, who found a verdict for the plaintiff, from which the defendant appealed on the ground taken on the Circuit.

The opinion of the Court was delivered by Mr. Justice Gantt.

The plaintiff in this case hired her son (a boy under age) to the defendant for one year. He remained from January until June, when for some cause the boy left the service of the do fendant.

This action was brought by the mother, to recover the va lue of her son's services for the time he remained.

HOUSTON, vs. FRAZIER.

I see nothing in the contract which tends to impair the "correctness of the construction given to it by the presiding Judge. The contract was made with the mother and for her benefit; consequently she might rightfully and legally recover the wages secured to be paid by the contract, which the defendant had entered into with her.

The nonsuit moved for, is refused-Richardson, Johnson Colcock, Justices concurred.

MATHEW HOUSTON, US. ISAAC FRAZIER.

Note of hand after due, endorsed 1st November, 1819. At the time of endorsement, endorser informed that immediate demand would not be made of drawer; and promised himself to write to drawer and inform him. Demand made of drawer, residing in Georgia, about 10th December. Held that demand was made in sufficient time. Indulgence given to drawer after demand, on his promise to pay; and suit afterwards brought against him. Notice of non-payment given to endorser, March, 1820. Held that endorser was discharged on account of the credit given to drawer, and for laches in giving notice to endorser. No sufficient evidence of a promise to pay, after notice of dishonor; which must be explicit and clearly proved.

THIS was an action by the plaintiff, as survivor of the firm of Gillispie & Houston, against the defendant as endorser of a note.

The note was drawn by Wilson Conner, on the 18th of October, 1816, in favor of Isaac Frazier, the defendant, or order, and payable on the 1st day of January, 1818. On the 1st day of November, 1919, Frazier endorsed the note, for value received, to Gillispie & Houston. The evidence produced on the trial of this case established the following facts:

Mathew C. Houston, examined under a commission for that purpose, deposed, "That Wilson Conner, in the year 1819, resided in Montgomery county, in the state of Georgia, about two days ride from Milledgeville; that he, the witness, had been informed by Frazier, the defendant, that he was brother-in-law, or a relation by marriage, to Conner.