
    WILLIAM CAIN v. JOSEPH A. HAWKINS, Administrator of WILLIAM HAWKINS.
    A creditor cannot charge as a devastavit in an administrator, an act done by liis consent and with his concurrence.
    AotioN of debt, upon an administration bond, tried before Person, J., at the last Fall Term of Davie Superior Court.
    The plaintiff assigned as a breach of the defendant’s bond, the non-payment of a debt, due him, of three hundred dollars.
    
      At the return term of the suit, it was referred, by consent, to Mr. Bingham, as a commissioner, to state an account of the assets in the hands of the administrator. The report of the commissioner was returned to the last term, and exceptions to the same wore filed by the plaintiff, to one item in the account, which is the sole matter of controversy. The exceptions are : 1st. That the commissioner charged the defendant with only $100 for the negro Sam, whereas, by the evidence taken in the cause, he was of the value of $850.
    2nd. That the commissioner did not report that the'defendant, in selling, as administrator of WilliainHawkins, the property of his intestate, was guilty of gross negligence in selling the ¡lave Sam for $100.
    Sam had been the nurse and constant attendant of John P. Hawkins, a son of the intestate, a cripple, who was unable to. help himself, and when he was about to be offered for sale, much sympathy was expressed for him in the crowd of bystanders, and many persons said that “Sam must be bought in for John Hawkins.” A subscription was drawn up and signed by divers persons there present, and by the plaintiff amongst the rest, to the effect that, if the slave Sam could be bought for J. P. Hawkins at a sum under four hundred dollars, they would go in as his sureties. When the slave Sam was put up, he came forward, lifting the cripple J. P. Hawkins,and placed him in the piazza where the selling was carried on ; the crier called the attention of the crowd to J. P. Hawkins’ condition, and then said, “ J. P. Hawkins will give $100 for Sam, who will bid any more ?” The crowd cried, “knock him off'! knock him off!” No one bid any more, and he was knocked off to J. P. Hawkins at that price.
    The plaintiff contended that the defendant was guilty of a devastavit, in permitting the slave to be sacrificed to a mistaken sympathy, amounting to an illegal combination.
    The defendant replied, that the plaintiff himself was privy to this combination, and one of the promoters of the feeling to which the slave was sacrificed, and that he was concluded from complaining of the act.
    
      To this, plaintiff rejoined, that he was misled in that respect by the public announcement, in the presence of the administrator, that the estate was good for its debts without Sam ; that he was particularly misled by hearing the crier, who was the agent of the defendant, make that declaration at the time of the sale.
    The testimony on these points was reported in full by the commissioner, and is quite voluminous. The portion of it bearing immediately on the matters in question, is recited by the Court in declaring its opinion. The Court below overruled the exception and confirmed the report. From which the plaintiff prayed and obtained an appeal.
    Jones, for the plaintiff.
    
      Boy dm and Clement, for the defendant.
   Battle, J.

We are clearly of opinion that the exception of the plaintiff cannot be sustained. The testimony shows, beyon'd'doubt, that he was present at the sale of the slave Sam, and concurred in the generally expressed desire that John P. Hawkins should buy him at an undervalue. He was one of those who signed the agreement to become one of the said John’s sureties, provided the slave did not sell for more than four hundred dollars. Surely, after being, in part, instrumental in bringing about the result of the sale, he cannot be permitted to charge the administrator with a dmastmit for not preventing it. But the plaintiff says, that he was induced to do so by a false representation made to him, that the estate of the intestate was amply sufficient to pay all the debts, and of course his among the rest. It is not proved, to our satisfaction, that if any such representation was made to the plaintiff, or publicly to the persons who were present at the sale, it was made by the defendant, or by any person authorised by him to make it. It is true, that some of the witnesses for the plaintiff, testify that they heard the crier make such a declaration when he offered the slave for sale, but it is positively denied by the crier himself; and the clerk who kept the account, and several other persons, who were standing by at the time, testify that they did not hear the crier say any thing about the condition of the estate. The burden of proof is upon the plaintiff, and he has failed to sustain his allegations. It is unnecessary, therefore, for ns to express an opinion as to the law applicable to the case, had the,facts been proved. The only question of law upon which we do give an opinion is, that the plaintiff cannot charge as a devastavit in the administrator, an act which was done not only by his consent, but by his concurrence.

Pee CuexaM, , The order of the Court below, overruling the exceptions of the plaintiff and confirming the report, is affirmed; and this will be certified to the said Court, to the end, that such further proceedings may be there had imjfei^iige as the law requires.  