
    Helm against Miller.
    The piaintifl, ⅛(? ¿Texecu-gw »⅛° was cliso í P fXy\ J 0 0 (j t aii the testator's Pf°Pcrty, <»- ciuum<r slaves broug-fit with (1™ !"to ihis gmia, sold a jYYtestator8 at the time of ⅞¾⅞¶¾¶⅛ the considera-plied to the his
    
      Held, that the sale was made, not in the character of executor,.m right of his wife, but in his private rig’ll!, as part of his properly acquired by Ms marriage with the legatee, and was, therefore, illegal and void, especially as the sale was not necessary .to pay the debts of the testator, and there was evidence of a contrivance to elude the act; (2 N. R. L. 20Í. J Ret\ Slat. 65G.) and that no action could be maintained on the note given for the consideration money.
    THIS was an action of assumpsit, tried at the Steuben cir-euit. the loth of June, 1819, before Mr. Justice Woodworth, The plaintiff save in evidence a note executed by the defend-A O J ant. as follows : “ For value received, four years after the date hereof, I promise to pay to William Helm, or order, three ' i i j j - hundred and fifty dollars, with interest until paid. This note is executed in consideration of a negro man, named John, this day delivered by said Helm to said Miller; and it is the express understanding of the parties,-that if, in consequence of any law of this or of the United States, the said negro man shall be legally discharged or liberated from the possession of the said Miller, previous to the payment hereof, then this obligation to be void. This provision is not, however, to extend to any law's to be passed hereafter for the emancipation of slaves; dated October 21, 1813.” '
    It was proved that the defendant purchased the negro man of the plaintiff; and at the time of sale, it was agreed, #on the suggestion of the plaintiff, and for greater caution, that the confess a judgment in favor of the defendant ; and that an execution should issue by virtue of which the negro should be sold; which was accordingly done, and a bill of sale was executed by the sheriff’ to the defendant, which was produced and proved at the ’trial.
    It was admitted that the negro man was brought from the state of Virginia by P. Thornton, who owned him, at the time of his death, in 1806 ; and by his will, dated July 1, 1806, which was produced, he devised to his wife all the property he possessed in the state of View- York, including his negro slaves, and appointed his wife executrix, and L. Washington of George county, Virginia, his executor. The will was proved, and letters of administration thereon granted to Susan Thornton, widow of the testator, only, as executrix. Previous to the giving of the above mentioned note the plaintiff' married the said Susan Thornton. It appeared that the plaintiff had assigned the note to Nathaniel Wells fy Co. of New- York. It was proved that the defendant had admitted that the note was justly due to the plaintiff’. The judge ruled that the action was not sustainable, and nonsuited the plaintiff!
    A motion was made to set aside the nonsuit, and for a new trial.
    
      T. Sedgwick, for the plaintiff.
    This was not such an importation and sale of the slave, as would render the transaction void under the act. (2 N. R. L. 201. sess. 36. ch. 88. 1 Rev. St at. 656.) In the case of Sable v. Hitchcock, (2 Johns. Cases, 79.) the court were of opinion that the objects of the act are answered by restraining its operation to the traffic in slaves, by persons acting in their own right, and for their own emolument; and that a sale, in the course of administration, or by persons acting in outer droit, as executors or administrators, or trustees, was not within the act. The plaintiff', then, in place of his wife, who was executrix, might sell the slave. Such a case not being within the mischief of the act, is not to be deemed as within its intent.
    The plaintiff’ having married the executrix, who had a right to sell the property of the testator, it is the same as #if the sale had been by the executrix. He might elect to hold as executor or legatee. (Shep. Touch. 438. 10 Co. 47. 3 Bac. A.br. 84. 2 E<¡. Cas. Ahr. 458. 2 P. Wins. 532.) If it is for the interest of the plaintiff’ to hold as executor, or, vice versa, as legatee, the law will presume that he holds in that character which is most for his interest. (Cro. Eliz. 223.)
    It is true, that the court, in the case of Casar v. Peabody, (II Johns. Rep. 68.) held, that though a person might lawfully purchase a slave, regularly sold by the sheriff under a judgment and execution against the owner, yet that such purchaser could not himself sell the slave; but this decision is hardly rec oncilable with that of Sable v. Hitchcock.
    
    
      Collier, contra.
    The statute prohibits the importer of a slave from selling. Now, a legatee can have no other or greater rights than his testator. The donee, by a gift, can acquire no more than the rights of the donor. The case of Cce-snr v. Peabody, in which it was decided that a sale by a purchaser of a slave under an execution was void, is much stronger than the present.
    It is said that the plaintiff’s wife must be considered as taking in the character of executrix, and that in that capacity she might sell. The assent of an executor to take as legatee, is express or implied; and it is to be implied from his language or conduct. (1 Comyn’s Dig. Adminis. eh. 5. Toller’s Law of Ei. 315. Roper on Legacies, 192. 1 Lev. 25. 1 Roll. Ahr 619. 1 Leon, 216. Shep. Touch. 454.)
    If the plaintiff acted in his own right, he cannot claim to have acted as executor, or in the right of another. Now, he made the sale and took the note in his own name, and applied the money to his own individual debt.
    Again; the sale under the judgment and execution was collusive, and in fraud of the statute. (2 Johns. Ch. Rep. 172. Cro. E'iz. 347, 348. 3 East, 120.)
    
      Sedgwick, in reply,
    said, that the court would presume that the plaintiff elected to sell in that capacity in which he might lawfully sell; not that he elected to do an unlawful act.
   ♦Spencer, Ch. J.,

delivered the opinion of the court.

If the sale of the negro man by the plaintiff was not in his representative character, as executor in the right of his wife, Susan Thornton, but in his private capacity, then the nonsuit Is right; for it would have been in violation of the statute ; the slave would become free, and consequently there would be a total failure of the consideration of the note. The case of Sable v. Hitchcock, (2 Johns. Cas. 79.) decided, that the sale of a slave imported into this state since the passing of the act of the 22<l of February, 1788, in the course of administration, or by persons acting in outer droit, would not be within the act so as to subject the vendors to the penalty, or to emancipate the slave, if the sale was free from collusion.

In the present case, the facts show that the sale was not made by the plaintiff as executor of Thornton. Mrs. Thornton, with whom the plaintiff intermarried, was the legatee of all her former husband’s personal estate, and she was also ex-cculrix. Thornton died in 1806, and the negro in question was sold by the plaintiff in 1813; and it does not appear that Thornton owed any debts. Now, as Mrs. T. was legatee and executrix, it was competent to her to take as legatee. If the legatee be executor, and says he will take according to the will, that amounts to an assent to take as legatee. (Com. Dig. Administration, (C. 6) 354. 1 Lev. 25. 3 Last, 120. Roper, 192.) So far does the sale of the slave appear to have been unnecessary in the administration of Thornton’s estate, that the note in question was disposed of to pay the plaintiffs private debt; add to this the device adopted to elude the provisions of the statute, by the plaintiffs confessing a sham judgment under which the slave was sold. The lapse of time, too, since Thornton’s death, precludes the idea that it was necessary to sell the slave to pay his debts. The acts of the plaintiff are decisive, that he did not sell the slave as executor, but in his private right, and as part of his property acquired by his intermarriage with Mrs. Thornton. The motion to set aside the nonsuit must be denied.

Motion denied.  