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issued, was properly revived by a Court of competent GRIFFITË jurisdiction, and its judgment can be questioned only in an appellate Court.


The judgment was revived by a thirty day rules That rule was, in fact, a scire fucias. The proceeding was conformable to the usual practice in South Carolina. The Court of common pleas of that state adjudged the execution to be awarded upon this revival. Can this Court, under such circumstances, reverse that judgment? Suppose the judgment of the Court of common pleas had been founded on a scire facias, and that scire facias had been informal. Could this Court, in such a case, reverse the judgment ?. We contend that it could not in either case. The Court that ordered the execu. tion to be awarded had jurisdiction so to do į and its decision is final.

The 9th section of the law of South Carolina; respecting the thirty day rule to revive judgments, &c. gives express authority to the Courts of that state to issue execution without a scire facias. But it is objected that this act is applicable only to cases of lapse of time, not to cases of the death of the party. But this is matter of construction on which those Courts were competent to decide.

The doctrine in the case of Ford v Travis, so much relied upon by the Defendant's counsel, is only that ani unconditional, unlimited, administration, where the executor has previously obtained probate of the will, is void ; not that a temporary administration would have been so in a like case.

4. Admitting the execution to have been improperly issued, still the sale of the property under that execution was valid.

All acts under a judgment obtained by fraud are válid :

: a fortiori; if the judgment be founded on a mistake either of law or fact. 3 Cranch, 306, Simms and Wise V. Slacum.

It is laid down in 2 Bac. Abr. 270, Tit. Execution, that “ if upon his judgment the Plaintiff takes out a VOL. VIII.


GRIFFITH fieri facias, and thereupon the sheriff sells a term for

years to a stranger, and the judgment is afterwards reTRAZIER. versed, the Defendant shall only be restored to the mo

ney for which the term was sold, and not to the term itself; for by the writ the sheriff had authority to sell; and if the sale may be avoided afterwards, few would be willing to purchase under executions, which would render writs of execution of no effect.” The following authorities

go to establish the same point. Roll. Ab. 778. Cro. Eliz. 278. Cro. Jac. 246. 8 Rep. 96. Matthew Manning's case. id. 142. Dr. Drury's case. 1 Wils. 302, Earl v. Brown. It is true that these cases all relate to sales of personal property; but there is no difference as it respects the sale of lands under a fieri facias, or what was equivalent thereto, as in the present case. These lands were sold as personal effects. 1 Haywood's N. Carolina Reports.

PINKNEY, contra, contended,

1. That the case in 3 Bos. and Pul. did not state that the statute of Geo. 3 was founded on a doubt, but upon a clear defect of jurisdiction. That no case could be found to sanction the grant of administration after probate in a case like the present. That the case of Ford v. Travis was decisive that no such administration was valid in South Carolina.

2. That the judgment of the ordinary was not conclusive that he had no jurisdiction in a case like that under consideration. That the Court of appeals of South Carolina was of this opinion, and had therefore declared the judgment of the ordinary void. 2 Bacı Abr. 376.

3. That the judgment on the rule to show cause was not conclusive; and this, besides the other reasons which have been already mentioned, because it was against a person not a representative of the testator.

4. That this was not the case of a sale to a third person, as in the authority cited from Bacon, and the other cases to the same point; but that the Plaintiff claimed under Bourdeax, as a purchaser.

That the statute of South Carolina, respecting the GRIFFITH thirty day rule, was only applicable to cases of lapse of time, not to cases of the death of the party.



That as to the case in 1 Wils. 302, cited by the Plaintiff's counsel, it did not appear that the Court decided on the validity of the sale, nor that any person wished to disturb it.

Jones, on the same side.

As to the law respecting a void judgment, cited Vin. Ab. Tit. Error-also Com, Dig, and Bac, Ab. same title.

Tuesday, February 15th. Absent.... WASHINGTON, J.

MARSHALL, C. J, delivered the opinion of the Court as follows:

The Plaintiff in error, who was also Plaintiff in the Circuit Court, brought a writ of trespass quare clausum fregit, in order to try his title to certain lands, lying in the district of South Carolina, which were in possession of the Defendant.

The title of the Plaintiff, which constituted the sole question in the cause, appeared, on the trial, to be as follows:

Joseph Salvadore, being seized of the lands in which the trespass is alleged to have been committed, departed this life some time in the year 1786, having first made his last will in writing, in which he named several executors, one of whom, Joseph Dacosta, made probate of the will, and took upon himself the burthen of executing the same; after which, in the year 1789, he left the state of South Carolina, and resided in Georgia. In the year 1790, letters of administration on the goods of Salvadore, unadministered by Dacosta his qualified executor, were granted to James Lamotte.

In August, 1786, a judgment was obtained by Daniel Bourdeaux against Salvadore. In January, 1791, a thirty day rule, which, by an act of the state of South Carolina, was, in certain cases, substituted in the place

GRIPTITH of a scire facias, was issued to revive this judgment

against Lamotte as adıninistrator of Salvadore. This FRAZIER. rule being served and returned, the following indorse

ment was made on it: " 15th March, 1791, made absolute subject to a future argument."

• Fi, fa, 16th April, 1791."

An execution issued on this judgment, under which the land was sold, and was conveyed by the sheriff to Peter Freneau by a deed dated the 6th day of June, 1791. On the 16th of July, 1796, a decree was rendered in the suit, Pierce Bretler v. Daniel Bourdeaux and Peter Freneau, directing the said Peter to convey to such person as Pierce Butler should appoint. In pursuance of this decree, Peter Frereau conveyed to Samuel Jackson, under whom the Plaintiff claims by regular conveyances.

On the motion of the Defendant, the Circuit Court instructed the jury that the letters of administration granted to James Lamotte were totally void ; that therefore the judgment of Bourdeaux was not revived against the estate of Salvadores that the sale and conveyance by the sheriff passed no title to the purchaser; and that the evidence was not sufficient to maintain the Plaintiff's action. The jury found a verdict for the Defendant, and judgment was rendered in his favor. The Plaintiff excepted to the opinion of the Court, and has sued out a writ of error to the judgment.

The sole defect alleged in the title of the Plaintiff being in thạt part of it which depends on the sale and conveyance of the sheriff to Peter Freneau, the validity of that sale is the principal if not the only question in the cause. lp support of it the Plaintiff contends,

1st. That the letters of administration, being durante absentia of the executor, were properly granted to James Lamotte.

211. If the ordinary erred in granting these letters, still Lamotte was administrator de facto ; and his acts bound tlie estate of Salvadore until those letters should be revoked.

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3d, That the judgment on which the execution issued GRIFFITI was properly revived by a Court of competent jurisdiction, and its judgment can be questioned only in an ap- FRAZIER, pellate Court.

The negative of these propositions is maintained by the Defendant in error.

That the appointment of an executor, and his acceptance of the office, constitute a complete legal owner of the personal estate of the deceased is admitted ; but it is contended that these acts suspend without annihilating the

power of the ordinary. So long as the executor is capable of exercising the authority with which he has been invested by the testator, it can be conferred on no other person; but when he becomes incapable, from any cause whatever, as by insanity or death, the power of appointing some person, who shall secure the estate from ruin, necessarily reverts to thạt tribunal which the law appoints for the general purpose of providing for the management of the property of dead persons. All cases of temporary administration, as during the minority of an executor, or during his absence previous to the probate of the will, are considered as exercises of the same power, though in a less degree, and as proving that the ordinary may, after the executor has qualified, if he shall absent himself so as, in the opinion of the ordinary, to disqualify him from performing his duty, appoint an administrator de bonis non with the will annexed, whose power shall continue until the return of the executor.

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The Court does not concur in this reasoning. In the cases stated at bar, and in all cases where temporary administration has been granted, unless under a special act of the legislature, the executor was, for the time, absolutely incapable of performing his duty. There existed an actual legal disability to perform the functions of his office. Until probate of the will, and until letters testamentary are obtained, the executor cannot obtain any judgment; because it cannot appear that he is executor.

There is, therefore, 'an absolute' necessity for appointing some person who, until probate, shall take care of

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