
    Penelope Smith v. Reuben Anderson.
    One who is administering on an estate, and who has brought suit in his individual capacity, may by amendment make himself a party plaintiff in his representative character, if the estate he represents has an interest in the recovery sought.
    Error from Robertson. Tried below before the Hon. Charles A. Frazer.
    This suit was brought in June, 1853, by Penelope Smith, to recover a number of slaves from Reuben Anderson. Anderson asserted title to the slaves, and plead that he had purchased them from James B. Smith, deceased (who was Penelope Smith’s husband), in his lifetime. He asked that the representatives of James B. Smith be made parties.
    The suit was originally brought by Mrs. Smith in her own right; after the filing of Anderson’s answer, she amended her pleading, alleging the issuance of letters of administration to herself on her deceased husband’s estate, and prayed to be admitted a party plaintiff, as administratrix.
    After several mistrials, the defendant filed the exceptions to Mrs. Smith’s amended petition, for the following causes:
    “1. The plaintiff seeks to change the, nature and character of the parties.
    
      “ 2. The plaintiff is barred from claiming in her amended petition as administratrix of J. B. Smith.
    “3. Plaintiff does not show that she is the legal administratrix.”
    The exceptions to the amended answer were sustained. Reuben Smith and Mrs. Delespine, after releasing all interest in the property involved, were introduced as witnesses, and their testimony excluded, for what cause does not appear.
    The court instructed the jury that Mrs. Smith could not recover in her representative capacity as administratrix of the estate of her deceased husband.
    The record is quite voluminous, presenting a number of questions which were ably argued in the briefs on file ; but they have been, as stated by the court, all settled in other causes since the decision of this case in the court below.
    
      Brittell & Hamman, for plaintiff in error.
    
      
      Oldham & Davis, for defendant in error.
   Walker, J.

However much of the original importance attaching to this suit may have been lost by lapse of time and the events of the war, we find it necessary to reverse and remand the case for at least two errors apparent upon the record.

It was error for the court to rule out the evidence of Mrs. Delespine and Reuben Smith. They had no disqualifying interest in the event of the suit.

It was also error to sustain the very vague and uncertain exceptions to the amended petition. Having brought the suit in her own name, it was not error for the plaintiff to join herself as party plaintiff in her capacity as administratrix, especially as the defendant had virtually prayed that she be made a party as administratrix, or that Jas. B. Smith’s administrator be made a party.

Any fraud in the sale of the negroes would vitiate the • sale; but fraud must be proved clearly—it will not be presumed. And unless parties competent to consent did consent to the sale of the negroes, the sale was void. The jury should weigh the circumstances of the sale and all the facts connected with it, in order to determine whether it was a fraud upon the rights of Mrs. Smith or the estate of her intestate.

There are many interesting questions presented on this record, but subsequent decisions have settled them all, and we do not think it necessary to make further comment on them.

The judgment of the District Court is reversed and the cause remanded.

Reversed and remanded.  