
    Heffernan’s Adm’r &c. v. Grymes’s Adm’r &c.
    February, 1831.
    (Absent Coalter, J.)
    Administrator d. b. n. — Capacity to Sue — Case at Bar. —An administrator makes sale of personal property ol decedent, partly for cask, partly on credi t, and says on oath, in answer in chancery, that lie did not mean to convert proceeds to bis own use; before credit payment due, bis administration is revoked, and administration de bonis non granted to another: Held, administrator de bonis non entitled to sue for and recover the deferred payment of tile vendee.
    Foreign Attachment — Appeal by Garnishee — Effect.— Upon a foreign attachment in chancery, against absent debtor and home defendant as garnishee, decree against absent deiendant for debt, and against home defendant for a debt due by him to absentee, to be paid plaintiff in part of debt due him by absentee, the absentee being in default: the home defendant appeals: Ilium, the home defendant cannot in the appellate court, contest the justice of the decree as against the absentee, but only so much of it as affects himself.
    Administrators — Compensation to Agent — Case at Bar. —An administrator contracts to sell slaves of testator’s estate, partly for cash, partly on credit; contract made by an agent of administrator, who receives cash payment; the administrator’s powers are revoked, so that the slaves sold cannot be delivered according to contract: and then administrator authorizes agent to retain the cash payment received by him on the executory contract for sale of the slaves, as compensation to agent for services to decedent's estate: Held, this is not money had and received by agent to use of the persons from whom, but to use of administrator for whom, he received it. and administrator had a right so to dispose thereof.
    Samuel W. Sayre, administrator of Philip L. Gry'mes late of the county of Middlesex deceased, on the 20th October 1808, sold to Thomas Cardineaux, agent in making the purchase for James Mather and Abner L. Duncan of *New Orleans, forty-three slaves of Grymes’s estate, for 10,033 dollars, whereof Cardineaux paid Sayre 4,233 dollars in cash, and for the payment of the residue within twelve months, he stipulated, that he would give such security in New Orleans, as Henry Heifer-nan, who was to accompany Cardineaux and the slaves thither, should approve; and if he should fail to give such security, it was stipulated, that the purchasers should retain only so many of the slaves as at a fair average value should be equal to the 4,233 dollars that had been paid in cash; and, in that case, the purchasers were to bear the expense of transportation of the slaves retained by them, and Sayre the expense of transportation of those which should be returned to him; but the whole were to be transported at the risk of the purchasers.
    Sayre at the same time, by letter of attorney, empowered Heffernan to transact for him at New Orleans, all the business arising from the contract with Cardineaux, and also to make sale there of the other slaves of Grymes’s estate, without limitation as to the number to be sold, or the terms of sale; and as compensation for these, and for sundry services inreviousl3 rendered by Heffernan to Sayre, in managing the affairs of Grymes’s estate, Sayre agreed to allow Heffernan a commission of ten per cent, on the amount of the proceeds of the sale of slaves already made to Car-dineaux, and on the amount of the sales which Heffernan should effect in New Orleans, together with his reasonable expenses.
    Heffernan did not accompany, but promptly followed, Cardineaux and the cargo of slaves, to New Orleans; and, in a letter to Sayre, dated the 13th December 1808, he informed Sayre of his arrival, and. that Cardineaux’s principals, Duncan and Mather, had offered the uncle of the latter, James Mather the elder, as surety for the deferred payment (5,800 dollars) of the price of the slaves sold to Cardineaux, but that he did not approve, and should not accept, that security.
    On the 31st December 1808, Heffernan on the authority of Sayre’s letter of attorney to him, covenanted for Sayre, *to sell and deliver to James Mather the younger and William Kenner, a hundred slaves of Grymes’s estaré, for 40,000 dollars; of which the sum of 5,242 dollars was to be paid to Heffernan in cash ; 14,758 dollars, upon the delivery of the slaves at New Orleans ' (subject to a discount of ten per cent, on 20,000 dollars, the amount of the first two payments) ; and 20,000 dollars four years from the date of the delivery of the slaves.
    And, on the same 31st December 1808,, Heffernan accepted an engagement of Duncan and the younger Mather, indorsed on the contract between Sayre and Cardineaux for the sale of the forty-three slaves to-them, that they, Duncan and Mather, would be responsible to Sayre, for the deferred payment of the price of those slaves (5,800 dollars) though, as Cardineaux was, the agent of Duncan and Mather in the purchase, they were already bound for the debt, and their engagement to pay it was no additional security. And Heffernan, at the same time, professing to act as the attorney in fact of Sayre, made a contract with Duncan and Mather, also indorsed on Sayre’s contract with Cardineaux, whereby he extended the credit for the 5,800 dollars, which they owed Sayre on account of their purchase of slaves from him through the agency of Cardineaux, to four years; which extension of credit was expressed to be “in consequence of an advantageous contract-that day entered into with Mather, Duncan., &c.” meaning (as it plainly appeared) the contract which he had made with Mather and Kenner, for the sale of an hundred slaves of Grymes’s estate to them; and thus, it seemed, that Duncan, though not named in this contract, was interested in it.
    Immediately after these transactions, .Heffernan left New Orleans, and returned by sea to Baltimore; whence, on the 26th January 1809, he wrote a letter to Sayre, giving him a distinct and full account of what he had done in his agency, and explaining the reasons of his conduct therein ; and mentioning particularly, that the cash payment of 5,242 dollars, which he had received upon the contract for the sale of the *hundred slaves of Grymes’s estate, was the amount of his commission of ten per cent, (namely, on the aggregate of the proceeds of the sales of that parcel of slaves, and of the forty-three slaves sold to Cardineaux) and his expenses; and that he should retain that sum, being the stipulated compensation for his services. And, in this letter, he commended his transactioqs to Sayre’s approbation, by telling him, that they “would secure to him (Sayre) a round sum of ^8,000. which he thought, in honor and justice he might make his own:” (an intimation afterwards relied on to- prove a confederacy between Heffernan and Sayre to defraud Grymes’s estate). And, after Heffernan’s return to Virginia, Sayre gave him a written acknowledgment, dated the 6th February 1809, tt^at the 5,242 dollars he had received, y?as justly retained by him on account of his commissions and expenses, according to agreement.
    Meantime, however, the court of chancery of Williamsburg, at the instance of the creditors of Grymes’s estate, upon strong doubts of the fairness of Sayre’s and Heff-ernan’s conduct in respect to it, had taken all the slaves of the estate into its own keeping; and shortly afterwards, Sayre’s letters of administration of Grymes’s estate were regularly revoked, on account of his malconduct therein; and administration de bonis non was granted to Robert West, to whom possession of all the remaining slaves of the estate was delivered: and thus the delivery of the hundred slaves which Heffernan had sold in New Orleans as the agent of Sayre, was anticipated and prevented, and the execution of that contract intirety defeated.
    In 1810, West as the administrator de bonis non of Grymes’s estate, exhibited a bill (of foreign attachment) against Mather, Duncan and Kenner,' residents of Louisiana, and Heffernan and Sa3re home defendants, in the superiour court of chancery of Williamsburg; wherein, after setting ■ forth the facts above stated, he charged, That the whole of the transactions were, on the part of Sayre and Heffernan, a confederacy to defraud the creditors of Grymes’s estate, *and others interested in it, and to share the plunder between them; inferring this fraudulent design from the circumstances of the transactions, and, especially, from the suggestion in Heffernan’s letter to Sayre of the 26th January 1809, that his proceedings would secure ^8,000. to Sayre, which he thought, Sayre might make his own: That Heffernan betrayed his trust, when he accepted the engagement of Duncan and Mather, to fulfil the contract of Cardineaux, their own acknowledged agent in contracting the debt, instead of insisting on good security, or on a restoration of the property : That Heffernan had not the colour of authority to extend the credit of the debt of Duncan and Mather for the 5,800 dollars, the balance of the purchase money of the slaves they had bought of Sayre through Cardineaux’s agency, from twelve months to four years; and therefore, that debt became due to Grymes’s estate, on the 20th October 1809, according to the original contract; and West as the administrator de bonis non of Grymes, was entitled to demand it: that Heffernan having received of Mather and Kenner 5,242 dollars, on the executor3T contract made by him for Sayre with them, for the sale of the hundred slaves of Grymes’s estate, and the execution of that contract having been defeated in the manner above mentioned, Heffernan was the debtor of Mather and Kenner, to that amount, as money had and received to their use; and this debt of Heffernan to the absent defendants Mather and Kenner, or at least Mather’s moiety thereof, was liable to attachment in the hands of Heffernan, as a garnishee to satisfy the debt due fiom Duncan and Mather, to Grymes’s estate. And the bill prayed, that Heffernan’s debt to Mather and Kenner, should accordingly be attached in the hands of Heffernan, as garnishee, that he should be compelled to pay the same, and that the court w'ould apply it to the satisfaction of the debt of Duncan and Mather to Grymes’s estate.
    Heffernan and Sayre, in their answers denied the fraudulent design and confederacy imputed by the bill, and Sayre’s intention to appropriate the assets of Grymes’s estate*to his own use; and they insisted that they had full authority, respectively, for all they had done; that their transactions were advantageous to Grymes’s estate; and that the money which Heffernan had received from Mather and Kenner, in advance, upon the executory contract for the sale of the hundred slaves, having been accounted for by him to Sayre, to his intire satisfaction, and appropriated to pay the stipulated compensation due Heffernan for his services to Gomes’s estate, was Heffernan’s own money to all intents and purposes.
    There was an order of publication against the absent defendants, Duncan, Mather and Kenner; and they failing to appear and answer, the bill was regularly taken pro confesso as to them.'
    • The chancellor dismissed the bill (with the plaintiff’s consent) as to the defendants Sayre and Kenner; but he decreed, that the absent defendants Duncan and Mather should pay the plaintiff the balance of the purchase money of the fort3r-three slaves, bought by them of Sayre, through the agency of Cardineaux, with interest from the 20th October 1809, and that Heffernan should pay the plaintiff to be applied towards the satisfaction of the debt decreed against Duncan and Mather, one half of the money (Mather’s) which Heffernan had received of Mather and Kerftier, on the executory contract for the sale of the hundred slaves, with interest from the time he received it.
    Heffernan immediately appealed from the decree, giving bond with surety to prosecute the appeal &c. in a penalty equal to double the amount of the money he was decreed to pay. The hearing of the cause in this court was delayed by a tissue of abate-ments, owing to the death first of Heffer-nan, then of West, and afterwards, of several successive representatives of Heffer-nan, of West, and of Grymes’s estate, and by the failure of the representatives of theparties, from time to time, to sue out process to revive the appeal, with promptitude. It was at length revived in the names of Segar sheriff of Middlesex, and administrator *de bonis non of Heffer-nan, against Braxton, administrator de bonis non of Grymes; and was argued at this term, by Johnson for the appellant, and J. M’C. Wickham for the appellee.
    I. Johnson objected, but neither the original plaintiff West, nor Braxton against whom the appeal was now revived, had any right, as administrators de bonis non of Grymes, to demand the debt due from Duncan and Mather to Sayre, the first representative of Grymes, upon the contract made by him with them, through their agent Cardineaux, whereby Sayre intended to convert, and did convert, the slaves of Grymes’s estate to his own use. And he cited Wernick’s adm’r v. M’Murdo, 5 Rand. 51, as fully sustaining the objection.
    Wickham answered, that, supposing this would have been an available objection for the absent debtors Duncan and Mather (who had not and could not have appealed from the decree) Heffernan could not make the objection. But, in truth, if the absent debtors were before the court, making the objection, it would not avail them. Ror, as both Sayre and Heffernan, in their answers, declared that it was not Sayre’s intention to convert the money to his own use, the administrator de bonis non was entitled to demand the debt, upon a principle recognized in Wernick’s adm’r v. M’Murdo, that though the slaves of Grymes’s estate were converted into another fund by Sayre, the property was not altered in the view of a court of equity, because Sayre did not intend by such alteration to convert it to his own use.
    II. Johnson said the money received by Heffernan of Mather and Kenner, upon the second contract for the sale of the hundred slaves, could not possibly constitute a debt from him to Duncan and Mather, the debtors of Grymes’s estate upon the first contract made by Sayre with Cardineaux. But waiving this consideration, the money received by Heffernan was his own. He received it under an ample authority given by Sayre, who had full power to give him such authority: he was accountable to Sayre for it: he did ^account to him for it; and Sayre authorized him to retain it, as the compensation for his services previously stipulated. Mather and Kenner had no right to recover the money they had paid Heffernan as money had and received to their use; not of Heffernan, certainly, for they paid it to him to be paid or accounted for to Sayre; and as to Sayre, they were not bound to forego their specific remedy against him; an action to recover damages, for his breach of the covenant made for him by Heffernan, for the sale and delivery of the hundred slaves. And supposing Sayre had no right to authorize Heffernan to retain the money; that it is, therefore, to be regarded as money belonging to Grymes’s ¡estate; and that the representative of Grvmes might recover it of Heffernan in an action at law; he surely could not recover it in this suit, a foreign attachment in chancery, to sustain which it is essential that there should be a subject within the jurisdiction of the court, belonging to the absent debtor.
    Wickham said, that by express provision of law (1 Rev. Code, ch. 104, ? 49, p. 387). Sayre had no right to sell, but on the contrary, was interdicted from selling, the slaves of Grymes’s estate, unless the other personal assets were insufficient to pay the debts, which was not shewn; no right, consequently, to authorize Heffernan to sell, or contract to sell, any of Grymes’s slaves; and no right to stipulate or give any compensation to Heffernan out of Grymes’s estate, for doing what the law positively interdicted. The covenant for the sale of the hundred slaves, was a palpable violation of Sayre’s trust as the representative of Grymes; and could never have been specifically enforced. The money paid to Heffernan by Mather and Kenner, upon that contract, was paid upon a consideration that failed in the very inception of the contract; it was, in effect, paid without consideration. It was, then, money had and received by Heffernan to their use; he was bound ex aequo et bono to refund it to them. In the engagement indorsed by Heffernan on Cardineaux’s contract, to extend the credit for the balance due thereon, from one year to four years, he de-dared *that his inducement to make that extraordinary agreement, was the advantageous bargain he had made for the sale of the hundred slaves, which he described as a contract made with Mather, Duncan &c. The &c. meant Kenner. Thus, it appeared, that Duncan was interested in the second as well as in the first contract. The money paid Heffernan on the second contract, was the money of Duncan, Mather and Kenner. And the portion of the debt thus contracted, by Heffernan to the three, which belonged to Duncan and Mather, or to either of them, was subject to be attached and condemned to satisfy the debt due by Duncan and Mather to Grymes’s estate upon the first contract. Shaver v. White, 6 Munf. 110. As to Sayre and Heffernan, he said, it was impossible the court should countenance their conduct in these transactions : the actual sale of forty-three slaves of Grymes’s estate, without occasion and against law (a proceeding, in which, obviously, Heffernan confederated with Sayre) ; the attempt to sell the residue by hundreds; the exorbitancy of the compensation stipulated to be paid Heffernan, for his assistance in this injustice to the estate; the fact of Sayre’s allowing the money received by Heffernan, to be retained by him as compensation for his services, after the court of chancery had taken the estate from him, on account of his misconduct, and when the revocation of his letters of administration was certain; every circumstance of these transactions evinced the iniquitous character of them, and took from the parties all claim to countenance or favour.
    
      
      Administrator d. b. n. — Capacity to Sue. — See mon-ographic note on “Executors and Administrators” appended to Rosser v. Depriest, 5 Gratt. 6.
      The principal case was cited in Wooddell v. Bruffy, 23 W. Va. 470.
    
    
      
      Foreign Attachments — See monographic note on “Attachments” appended to Lancaster v. Wilson, 27 Gratt. 624.
    
   CARR, J.

The first point made in the argument for the appellant, was, that the administrator de bonis non could not support this demand, because the first administrator by the sale of the forty-three slaves had so converted the property, that it amounted to an administration, and the covenant by which the vendees of the slaves were bound for the balance of the purchase money,would enure, not to the administrator de bonis non, but to the representative of the *first administrator. And fo'r this position the case of Wernick’s adm’r v. M’Murdo was relied on. This question might well have been raised by the absent defendants, if they had appeared and given security, before the decree, or had used their privilege to open the decree within seven years; and though they did not appear, it was proper matter to be considered, and we must presume, was considered by the court below. But it is very questionable with me, whether the home defendants can raise it. The foreign attachment had two objects, perfectly distinct, 1. to get a decree against the absent debtors for a debt claimed to be due from them; 2. to get an order against the home defendant Heffernan to pay to the plain tiff whatever sum (to the amount of that debt) he might be found to owe the absentees. With respect to the debt claimed of the absentees, the home defendant was not called on to answer., and had nothing to do with it: as to that, the plaintiff had to produce evidence of his claim, and the court, if satisfied therewith, would decree against the absentees. The home defendant was called on simply to say, whether he owed the absentees any debt, and to what amount? If he admitted that he had received property or money from them, but claimed it as his own, the court would judge upon the allegations and proofs, whether it was his or theirs: if it adjudged the debt to belong to the absentees, it would decree, that the home defendant should pay it, (or so much as was proper) to the plaintiff. Of this decree, the home defendant might complain, and take an appeal from it: but such appeal, I apprehend, would bring before the appellate court, that part of the case only which concerned the appellant: the residue would remain unappealed from, and therefore not subject to the revision of this court. That this is so, seems apparent from several considerations: 1. By what right should the home defendant be empowered to appeal for the absentees? His answer does not put in issue the justice of the plaintiff’s demand against them: he is not their ageni: he claims nothing jointly with them. That part of the decree from which he appeals, so far from *being against them, is in their favour; for the money which the home defendant claims as his, that decree decides to be theirs, and orders him to pay it towards their debt to the plaintiff. Again: how can there be an appeal as to the absent defendants, when they have never entered their appearance in the cause? The law is express, that a day is to be given to the absentees to appear, and give security for performing the decree; if they fail, the court is to take such proof as the plaintiff offers, and, if satisfied therewith, shall make such decree as shall seem just &c. 1 Rev. Code, ch. 123, $ 2, p. 474, 5. If the absentee, within seven years, shall return and appear openly, the plaintiff shall serve him with a copy of the decree; and thereupon, he may within twelve months, or if not served with the decree he may within seven years, appear in court, and petition to have the cause reheard ; and upon giving such security as the court shall require, shall be admitted to answer the bill, issue may be injoined, witnesses examined, and such other proceedings, decree &c. as shall seem just: but if the absentee shall not within twelve'months after service of a copy, or if not served, within seven years after the decree pronounced, appear as aforesaid &c. the decree, so made, shall stand absolutely confirmed against such absentee. The decree of the court of chancery in this case, was pronounced in 1813, and in 1831, we are called on to reverse it; no appearance having been entered by the absentees; no security given. Suppose the absentees within seven years had wished to appear, where must such appearance have been entered? Assuredly in the court where the decree was pronounced. And this proves that the appeal of the home defendant did not bring up their part of the case; for it could not be depending both here and there at the same time. Again : the appellant gives a bond, which is saved if he prosecutes his appeal with success. Suppose the home defendant here had proved that he owed the absentees nothing, would he not have succeeded completely, and reversed the decree in every thing which connected him? One more consideration : *the sum charged to be in the hands ^ of the home defendant belonging to the absent debtor may not amount to a tenth part of the debt due from the absentee to the plaintiff: if the appeal brings up the whole case, there ought to be security given on the appeal, to cover the plaintiff’s whole demand; for no one will deny, that if the absentees had appeared in the court below, and taken an appeal from that court, they would have had to give security to cover the whole demand against them; and yet would it not be most oppressive on the home defendant, to say that he should not be allowed to appeal, unless he gave security to cover the whole demand, when he has nothing to do with nine tenths of it? The appeal bond, in the present case, is not be-, fore us; but we see the amount in which it was directed to be taken; and that shews, that it was meant only to cover the sum which the home defendant was decreed to pay to the plaintiff. From these considerations, it is clear to me, that the case as between the plaintiff and absent defendants is not brought up by the appeal of Heffer-nan.

If it were, I should have no difficulty in saying, that trying the question by the very principles established in Wernick’s adm’r ' v. M’Murdo, the administrator de bonis non might well recover against the absent defendants in the present case. This case falls within that class distinctly treated of there, where the executor has changed the property, as by investing money in the funds, transferring it from one particular stock to another, or the like, but this done for the benefit of the estate, and without intention of making the money his own, as is declared by Sayre in his answer, to have been the case here. In such cases, though the act may amount to a conversion at law, equity, looking at the quo animo, will follow the property, and consider it still unadministered.

It will be remarked, that the bill was dismissed by consent, as to Sayre the other home defendant, so that the single question before the court is this: did the chancellor err in decreeing that Heffernan should pay the money to the plaintiff, i;as so much money due from him, to the absent defendant Mather? I at first thought the decree right; in which opinion, I was probably influenced by that strong disapprobation, which every ingenuous mind must feel at the moral aspect of this whole transaction. But closer and more dispassionate examination has compelled me to change my first impression. Heffer-nan, in the sale of the hundred slaves to Mather and Kenner, acted solely as the agent of Sayre, under a written authority: he received the first payment in that character : and as there was no fraud practised by him towards Mather and Kenner (whatever he might have meditated towards the estate of Grymes) and as also, immediately on his return, he accounted with Sayre, to his satisfaction, for the monej’ received, he could not in any point of view’, be considered as having in his hands money or prop-ertj’ belonging to Ma.ther and Kenner or either of them. It is not material, therefore, to consider, whether, if the joint funds of Mather and Kenner had been in his hands, the interest of Mather in that fund could have been condemned to pay the debt of Mather and Duncan.

Upon the whole, I conclude, that the decree should be reversed, and the bill dismissed.

The other judges concurred.  