
    CONSTITUTIONAL COURT, COLUMBIA,
    APRIL, 1807.
    Chew’s Administrator v. Travers.
    Although the defendant, by pleading over to the action, admitted generally the right of the plaintiff to sue as administrator, yet he was not thereby precluded from giving in evidence a fact not inconsistent with that admission — viz., that the administrator had no right to recover, because there was an executor.
    Trover for two negroes, tried in Edgefield district, before Bee-Vard, J. The plaintiff declared as*administrator with the will annexed of Drury Chew, deceased, and proved that the negroes in question belonged to the estate of said Chew at the time of his death. The defendant gave in evidence the probate of Drury Chew’s will, certified by the clerk of Abbeville District Court, certified in October, 1803, by Which it appeared, that letters testamentary had been granted by the ordinary of Ninety Six district, the 20th May, 1783, to Edward Mitchison, one of the executors appointed by the will of Drury Chew, of the said will; and proved that said Mitchison was still alive. One of the subscribing witnesses to the will, testified that he had seen Mitchison two years before the trial in this State. The presiding judge advised the plaintiff to suffer a nonsuit, and move this court to set it aside, and grant a new trial, in case the action could be sustained under the cireum. stances which were given in evidence, — which was complied with. It further appeared in evidence, that the negroes had been sold by the said executor, but under circumstances which cast upon the transaction a shade of fraud, or unfairness.. The defendant claimed, under the purchaser at that sale, the validity of which the plaintiff intended to dispute; also, that administration to the plaintiff bad been granted subsequent to the probate of the will.
    30th Nov. 1806. Farrow argued for the plaintiff,
    in support’ of the motion. .He contended that the defendant, having pleaded over to the action not guilty of the conversion, admitted the plain. tiff to.be administrator of the estate of Chew, with the will annexed, by which character he had sued, and no evidence ought to have * i 63 been admitted that he was not intitled to sue and recover in that character; and further, that inasmuch as the executor had removed out of the State, the Court oí Ordinary had properly granted administration to him ; and the sale of the executor being fraudulent, the administrator was not bound by it. He cited 3 Burr. 1242.
    
      Note. See Toll. 138. 3 Bos. and P. 26. 2Ld. Raym. 1071. Stat. 38 Geo. 3. An executor is an assignee in law, Toll. 128. Adm. Toll. 74, during the absence of the executor. Toll. 75. The stat. 38 Geo. 3,- c. 87. 3 B. and P. 26. Com. Dig. Adm’r.
    Goodwin, E contra,
    
    cited Toller’s Law of Executors ; contended that the not disputing the fact of the plainfiff’s being administra, tor, did not esstop him from giving evidence of another fact not inconsistent with it; and from shewing that there was an executor, and that the letters of administration had been erroneously granted, and were nugatory.
    The court, consisting of Gbimke, Waties, Trezevant, and Wilds, being divided in opinion, the case was held under advise, ment until 25th April, 1807,' at which time it was ordered tó be re-argued next November,
    7th November, 1807. All the judges present, except Trezevant, J., absent, sick. The court declined -hearing any further argument ; all agreeing in opinion.
   Wilds, J.,

declared the opinion, confirming the nonsuit, on the same ground on which it had been advised by the District Court; namely, that the defendant, by pleading over to the action, although it was an admission of the right of the plaintiff to sue as administrator generally, did not thereby preclude him from giving in evidence a fact not inconsistent with that admission, viz., that Drury Chew made a will, by which an executor .was appointed, who accepted ; and that the property in question had been administered by him, or that the administrator had no right to recover it, inasmuch as there was'an executor who was entitled to the administration, or who had already administered the property ; and that it may be easily conceived, that an administration may be granted, though there may be an executor appointed, who may afterwards accept the appointment ; as where a will is found after administration granted, or where administration is granted during absence.  