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where an absolute administration is granted; but de- 'GRIFFITH nies the law to be applicable to the grant of a temporary administration.

FRAZIER.

However correct this distinction may be in many cases, its application to that at bar is not admitted.

No temporary administration can be granted where there is an executor in being, capable of acting, and where the case will not justify the grant of a temporary administration, it would seem to be as completely out of the jurisdiction of the ordinary, as the grant of an absolute administration, where that is not within his power.

The case, put by Toller, of administration durante min. oritate, where the executor is of the age of 17, seems full in point. This is a temporary administration, and the minority of the executor is a fact for the consideration of the ordinary. Yetf, in such a case, he grants administration, the act is void, because, in fact, it is not a case in which he can grant it.

The reasoning of the Court in the case of Ford v. Travis, appears applicable to this case. They say the executor having proved the will, "was in the nature of a trustee; he could neither abandon his trust, nor be deprived of his interest in the estate of the deceased by any act of the ordinary. The ordinary, by proving the will and qualifying the executor, executed his power; and no law exists in this state, authorising him to resume it during the life time of the qualified executor, notwithstanding he may be absent from the state. Letters. of administration granted under such circumstances are void ab initio.

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If the ordinary cannot resume his power, so as to grant an absolute administration, he cannot resume it for a limited time. He cannot, by any act of his, divest the interest of the executor for an instant. The power may revert to him by operation of law, but cannot be assumed by any act of his own,

The grant of a temporary administration, as during the minority of an executor, is ad usum et commodum

ORIFFITH executoris. But in this case, the administration is, for

the time, absolute, and makes the adıninistrator the enFRAZIER. tire representative of the deceased. It would not be

unworthy of remark, if the case depended on it, that though the application of Lamotte was for administra. tion during the absence of the executor, yet the grant itself is without limitation,

But, in its very nature, the appointment of an administrator, during the absence of an executor under no disability, is essentially nothing more than the appointment of an ag 'nt for that executor. This, the ordinary has not the power to do. The executor alone can appoint his agents.

If the ordinary had no jurisdiction in the case, then the grant of administration was void ab initio, and all the acts of the grantee are voidToller, 128, 3, Term.

Rep. 125.

It is contended by the Plaintiff, that could this administration even be considered as null, where that forms the direct question before the Court, as it did in » Ford v. Travis, yet that point cannot be examined where it is collateral and incidental.

The answer which has been given at bar to this argument is entirely satisfactory. The question has never been examined in a Court of law sitting as an appellate Court. The question has never been, whether the letter's of administration shall be revokid or not, but whether they were originally void, so as not to warrant the particular act in support of which they were alleged,

But in this case, the letters of administration come as directly before the Court as in the case of Ford v. Travis. . The conveyance from the sheriff to Freneau forms a part of the Plaintiffs title ; and the validity of that .conveyance may depend on the question whether Lamotte was or was not the administrator of Salvadore, The question, therefore, must necessarily be decided ; and a majority of the Court is of opinion that administration was granted by a Court having no jurisdiction in the particular case, and is therefore absolutely void.

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3d. It is contended on the part of the Plaintiff, that GRIFFITU the judgment on which the execution issued was properly revived by a Court of competent jurisdiction, whose FRAZIER. judgment is therefore conclusive until reversed.

The first objection made to this judgment of revivor is, that it was made without legal process. The thirty day rule is substituted for the siere facias only in cases where lapse of time prevents the Plaintiff from suing out execution.

However this Court might construe the law on an appeal from a judgment of revivor in such case, that question has been decided by a Court of competent jurisdiction, and cannot be reviewed here.

The second objection-is, that the letters of adminis. tration being a mere nullity, no party representing the estate of Salvadore was before the Court, and consequently the judgment could not bind that estate.

This question is one of considerable difficulty. Had the judgment been revived against the executor himself, without the service of process, it would perhaps, while in force, have protected all proceedings under it. But this judgment is revived against Lamotte, who was not the representative of Salvadore. In the opinion of a majority of the Court, an execution on this judgment could not legally be levied on the property of Salvadore; and if so, the title was not vested iri the sheriff by the service of the execution, and could not be conveyed by him to the purchaser. Upon this point, the case cited from 1st Wilson, 302, is a strong one against the opinion of the Court: but in that case, the execution, though irregular, was issued on a real judgment, and justified the sheriff in taking the effects of the deceased. On its face it was unexceptionable. It issued at an improper time; but in all other respects was correct. In this case, the execution issued on a judgment which was itself a nullity; and it authorized the sheriff to take the effects real and personal of Joseph Salvadore in the hands of James Lamotte to be administered. Now the property of Salvadore was not in the hands of Lamotte, but was in the hands of his executor.

ORIFFITH The case in Wilson, too, is so briefly, I might say

obscurely, reported, as to leave the principle, on which FRAZIER. the Court decided, entirely uncertain. It does not ap

pear that the object of the motion extended further than the restoration of the money. This was not an attempt to set aside the sale; and nothing appears in the case from which is to be conclusively inferred what the opinion of the Court would bave been on that question.

In the opinion of a majority of the Court, there is no error in the judgment of the Circuit Court, and it is affirmed with costs.

Wednesday, February 16th.

HARPER observed that he understood the opinion of the Court to be founded considerably on the form of the fieri facias, inasmuch as it directed the sale of the lands of Salvadore in the hands of Lamotte, when, in fact, there were no lands in the hands of Lamotte.

MARSHALL, Ch. J.

That was one ground of the opinion: but another, was, that the sale was founded on a void judgment.

HARPER, as to the first point, suggested to the Court that the form of the fieri facias was against the lands as well as the goods.

VAN NESS , FORREST.

1814. Feb

8th.

Absent.... WASHINGTON, J.

A promissory ERROR to the Circuit Court for the district of note, given in Columbia. one member of a commercial company,

The case as stated by MARSHALL, Ch. J..in deliver'to another member, for ing the opinion of the Court was as follows ;

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in his own

when recovered would

The Defendant in error, who was president of a com- VAN NESS mercial company, consisting of four or five hundred members, sold certain merchandize, the property of the FORREST. company, to Jehiel Crossfield, and took his note payable in twenty days to Joseph Forrest, president of the the use of the commercial company, for the purchase money. De- maintain an acfault having been made in payment, Joseph Forrest in- tion at law by

the promisee stituted a suit against Jehiel Crossfield and John P. Van Ness, who was a dormant partner of Crossfield, name, against and also a partner of the commercial company.

the maker, notwithstand

ing both parThe declaration contains several counts. The first ties were part

ners in that is on the promissory note, which is charged as the note

company, and of Crossfield and Van Ness, trading under the firm of the money Jehiel Crossfield. The second and third, for goods, wares and merchandize sold and delivered, the fourth belong to the for money had and received by the Defendants, to the company, use of the Plaintiff, and the fifth on an insimul compu- ration be uptassit.

on a joint note, and the

Defendant The Defendant, Van Ness, pleads the general issue, plead, that the on which plea issue is joined.

. parate note of

one of the DeHe also pleads in bar several special pleas, amount- fendants, and ing in substance to this, that the several assumpsits in and accepted the declaration mentioned, were made for goods, wares, by the Plainand merchandize belonging to the commercial company, tistnction of consisting of many partners, and of which both the the debt, this Plaintiff and himself were members.

plea is bad upon special de

murrer, beThe third plea alleges, that the Plaintiff did agree to cause it ar accept and did accept the separate promissory note of

general issue. the said Crossfield, in payment of all and singular the debt and debts, promises and assumptions in the Plaintiffs said declaration above supposed ; in pursuance and execution of which agreement aforesaid, the said Defendant, Jehiel Crossfield, made the said promissory note in the plaintiff's said declaration mentioned and delivered the same to the said Plaintiff, on the day of the date of the said note, at the county aforesaid, and the Plaintiff then and there accepted the same as payment, in pursuance of the aforesaid agreement.

note is the se

mounts to the

To these several special pleas, the Plaintiff in the

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