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Bryant et al. vs. Booze.

4. In regard to this admission, we think it clear that being made as it was, after their purchase and after their title vested, it proves no agency as against Briscoe. It is evidence only as against Bryant, the party who made it. But the evidence of agency which the facts and circumstances themselves afford, affect both alike, and they are pretty strong. It would pot do any violence to probability to consider agency established independently of the admission. Besides, the exigencies of the case do not absolutely require that there should have been an agency. Only for the purpose of charging the principals with notice through the agent, is the agency at all material, and there is enough evidence of notice otherwise to uphold the verdict.

5. The owners of the land had an attorney in fact residing in Hart county, one Roberts. Booze resided in Floyd, the county in which the land lies. In the latter county resided also a mutual friend of the parties by the name of Bobo. Roberts had been corresponding with Bobo, and by that means knew that Booze wanted to purchase. He finally wrote to Bobo requesting him to say to Booze that he could have the land for $550 00 and taxes of the current year. This letter was received and handed to Booze on Saturday. That night Booze wrote an answer addressed to Roberts, accepting the proposition. On the next day, being Sunday, he carried this letter to the house of Bobo, told him of his acceptance, and requested him to read the letter. Bobo read it. It is contended that at this point the contract was closed, and consequently, that it was a Sunday contract. Several answers may be made to this suggestion. Roberts was, himself, only an attorney in fact, and his power, as copied in the record, did not confer express authority to constitute sub-attorneys or agents under him. His letter to Bobo did not instruct him to sell the land to Booze, but only to communicate a proposition. Booze did not, if he could have done so, elect to deal with Bobo alone, but addressed his written acceptance to Roberts, and adopted the mail, the medium by which the letter of Roberts to Bobo had been received, as the means of final transmission; he re

Bryant et al. vs. Booze.

quested Bobo to carry the letter on the next day to Rome, (whither Bobo was going on bis own business) and put it in the post-office. This Bobo promised to do, and he did so accordingly. There was no arrangement that Bobo should write informing Roberts of Booze's acceptance, or that Bobo was to take any further part in the transaction, except to convey Booze's letter to the post-office, and this he undertook to do at Booze's request, and not under any instructions from Roberts. It is plain that both of the actors in the Sunday interview treated the letter as the sole medium of acceptance, and as an acceptance designed to be direct, as between Booze and Roberts. We think it unquestionable that no contract came into existence until this letter was delivered into the post-office on Monday, and that then the contract became complete : Code, section 2728; 4 Georgia Reports, 1 ; 5 Ibid., 167. For an interesting article on contracts by letter, see 7 American Law Review, 433.

6. At first view there may seem to be a taint of illegality upon the contract, because of the request to post the letter having been made on Sunday, and of the subsequent posting of it in pursuance of that request. There is certainly here some resemblance to an agency created on Sunday and executed on Monday. But the act requested was simply a mechanical one, and nothing was to be done towards its performance till the Sabbath had ended. To treat such a request as the delegation of a power or the creation of an authority, and to set aside an act done during the week, as mere matter of favor, because the request to do it was made on Sunday, would be over strict. So nice an application of law to Sunday transactions would scarcely leave a man free to direct his son or his servant on Sunday night where to commence ploughing next morning. But if the posting of the letter was strictly the execution of an agency created on Sunday, the act of posting was, in itself, lawful, and if not lawfully authorized, was susceptible of being lawfully ratified and adopted : Code, section 2192; 9 N. H., 500. And see 24 Vt., 187, 317; 18 Ibid., 379; 35 Me., 143; 49 Ibid., 432; 27 Vt., 272; 9

Amis vs. Cameron.

Allen, 452; 3 Foster, 229; 44 Georgia Reports, 541. We think, however, it is not a breach of law to hand even a business letter, on Sunday, to another, and request a conveyanee of it to the post-office, to take place on the ensuing day; and that a letter thus dealt with may be the medium of closing a lawful contract.

7. One of the grounds in the motion for new trial involves the failure of complainant's counsel to erase from one of the letters which went out with the jury, a memorandum, made by himself, of dates as to the time of its reception, and of the writing and mailing of the reply. On objection to the memorandum as evidence, made by the opposite party, the counsel promised in court to erase it. Doubtless it was forgotten. But it did no harm. The evidence was substantially in conformity to the memorandum, and the jury were well warranted in finding as they did. The real pressure of the case was upon notice. The jury thought there was sufficient notice, actual or constructive, and the judge below was satisfied with their finding. Such a question is peculiarly one for the jury, and we think they did not draw their conclusion without premises to warrant it.

We affirm the judgment.

WILLIAM Amis, plaintiff in error, vs. BENJAMIN T. CAME

RON, executor, defendant in error.

55 419 57 426 59 561 60 585 63 770 66 367 66 381 79 146 80 243 82 695

55 449 104 133

1. The heirs or legatees of an estate, when all are of full age, may distribute

the same by consent when and how they please, so that they do not leave debts of the decedent unpaid, but they have no right, as against creditors who are not parties to the arrangement, to depart from the due course of administration, whether at the time of so doing they know of the existence

of debts or not. 2. Executors who qualified in 1859, but returned no inventory or appraise

ment, and never submitted their actings and doings to the supervision of the ordinary, by making returns or otherwise, have not legally administered, as against a creditor of the testator; and they cannot, upon a plea of plene administravit, defend themselves against the suit of the creditor by showing

Amis vs. Cameron.

that although the assets were sufficient to pay the debt, they were distributed among the residuary legatees in a manner agreed upon by themselves, (the executors included,) that the distribution was not completed till after the expiration of more than twelve months from qualification and grant of letters testamentary, that in the meantime due notice to creditors was published for six weeks as the statute requires, and that no account of the creditor's demand was rendered in, nor any notice given of the same, until

some years after the executors had thus parted with all the assets. 3. Where the conflict in evidence, if any, was between parties to the suit on

the one side, and a disinterested witness on the other, it was error to charge the jury that those witnesses were to have the preference whose means of information were the best and who had the best opportunity to notice and remember the facts. It was error, also, in such case, to charge that, in the absence of any corroborating circumstance, if all the witnesses were surrounded by the same circumstances, and were alike in everything but numbers, the evidence of two would overcome the evidence of one, and the jury were bound to believe the two in preference to the one. Where witnesses are parties to the suit, whatever may be their numbers, their opportunities, or means of information, the jury are to judge of the degree in which their interest affects their credibility.

Administrators and executors. Distribution. Witness. Charge of Court. Before JAMES M. MOBLEY, Esq., Judge pro hac vice. Troup Superior Court. November Term, 1874.

This suit was originally brought against John S. Hill and Benjamin T. Cameron, as executors of Thomas Cameron, deceased. The former dying pending suit, the action proceeded against the survivor. The facts are sufficiently reported in the opinion.

SPEER & SPEER; JOHN S. BIGBY, for plaintiff in error.

B. H. BIGHAM; FERRELL & LONGLEY, for defendant.

BLECKLEY, Judge.

Executors were sued in 1869, upon a note made by their testator in 1859. The will was probated in October, 1859, and the executors qualified. They, with others, were residuary legatees—one of them personally, and the other as trustee for his wife. The will directed the payment of all just debts. It provided for the equal division of the residuum

Amis vs. Cameron.

by commissioners, and the executors were instructed to have commissioners appointed for that purpose. The residuary legatees were of full age, and prior to the probate of the will they entered into a written contract in these terms:

“ We agree to waive the usual legal requirements, forms and ceremonies, in bringing to sale the property of said estate, and hereby authurize and request the executors to close up the affairs of said deceased without the delay usually attendant upon the orders, judgments, and decisions of the court.” Under this agreement, which was signed by the executors as well as the other residuary legatees, the executors proceeded, and wound up the estate, which consisted of land, slaves, railroad stock, and other personal property. The personalty, exclusive of the slaves, was ample to pay all the debts, and all were paid except this now in suit. Funds sufficient to pay this were, for a long while, kept on hand. The executors, in due time, advertised according to law, for six weeks, calling upon creditors to render in their claims, and this claim was not presented nor any notice given of it till 1867, before which time the whole estate had been distributed. The distribution was not completed within twelve months after qualification and the grant of letters testamentary. Ample means to pay this debt were retained until after that lapse of time. In the distribution, one of the executors received the testator's land and still has it. He also received slaves and money. The other executor, as trustee for his wife, received his equal share in money or personal property.

There is no doubt that this creditor could follow the assets, and compel payment of his demand by the legatees, pro rata, out of the effects which they received from the estate of his debtor; but the question is, can he recover a judgment against the executors, as such, over their plea of plene administravit.

1. It is well settled in Georgia that heirs or legatecs, when all of age, may, as among themselves, settle up estates as they choose, and their adjustment will be good against one another and against mere strangers, at least in equity : 34 Georgia Reports, 152 ; 31 Ibid., 753 ; 29 Ibid., 585; 36 Ibid., 184;

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