Levi vs. Huggins.

MOSES LEVI vs. G. A. HUGGINS, ADMR. OF W. J. MCELVEEN. Commissioner in Equity-Administration of Derelict Estates.

A Commissioner in Equity, in suing out letters of administration on a derelict estate under the Act of 1857, acts officially, and when he ceases to be Commissioner he ceases to be administrator. If no one else should apply, his successor should sue out letters of administration de bonis non.

BEFORE DAWKINS, J., AT CLARENDON, SPRING TERM, 1867.

The report of his Honor, the presiding Judge, is as follows: "G. A. Huggins, the defendant, was Commissioner in Equity for Clarendon District. While in office, he took out letters of administration, under the Act of 1857, to provide for the administration of derelict estates. He afterwards resigned the office of Commissioner in Equity. His successor, D. W. Cuttino, qualified as Commissioner, but gave no bond as administrator of the said estate. After the qualification of Cuttino as Commissioner in Equity, Huggins turned over the books and funds, &c., of the Commissioner's office to him, including the assets of all derelict estates in his hands. Huggins left the office before he took possession of the assets of the estate of W. J. McElveen. After the qualification of Cuttino, and the reception of the funds, &c., of the office, the sum. pro. in this case was issued. No formal revocation of letters to Huggins had been made by the Ordinary. Account and note are against intestate, and correctness not denied. "Pleas-Ne unques executor, plene administravit, and plene ad. præter.

"Upon the above state of facts, I am of opinion that the

Columbia, April and May, 1867.

action cannot be maintained against G. A. Huggins, and granted a nonsuit."

The plaintiff appealed, and now moved this Court to set aside the nonsuit, on the grounds:

Because his Honor erred in holding that G. A. Huggins is not, since his resignation of the office of Commissioner in Equity, the legal administrator of the estate of W. J. McElveen.

Coogler, for appellant.

Pressly and Barron, contra.

The opinion of the Court was delivered by

DUNKIN, C.J. The Act of 1857, 12 Stat. 607, renders it the duty of any Master or Commissioner in Equity, in case of any estate become derelict, "either by reason of no application for letters of administration or from any other cause," to apply to the Ordinary for letters of administration, who is required to grant such letters on receiving from such Master or Commissioner his own bond as in case of any other administration, "but no sureties on the same shall be required."

By the third section of the Act it is required that, in addition to filing an inventory, appraisement and account in the Ordinary's office, such Master or Commissioner shall keep an official record of the same, and all the proceedings therein, in his own office, which shall be submitted to the Chancellor for his inspection at each term of the Court of Equity in the district.

It is manifest from these provisions that the duties prescribed are altogether official, for the faithful discharge of which the sureties on his official bond are responsible, and, in consequence thereof, sureties on the administration bond to

Levi vs. Huggins.

the Ordinary are dispensed with. When he ceases to be Master or Commissioner, he can no longer keep an official record of his proceedings or report the same to the Chancellor, of whose Court he is now not an officer. It appears from the Judge's report that the defendant, although he took out letters of administration under the Act of 1857, resigned his office as Commissioner before he took possession of the assets of the intestate; and, moreover, that he turned over to his successor in office all the assets in his hands as Commissioner, including those of all derelict estates. When the defendant resigned his office as Commissioner, the estate of the intestate was no longer represented by him; and if no one else applied for administration, it became the duty of his successor in office to apply to the Ordinary, under the provisions of the Act, for letters of administration de bonis non.

The motion to set aside the nonsuit is dismissed.

WARDLAW and INGLIS, J. J., concurred.

Motion refused.

Columbia, April and May, 1867.

THE STATE vs. NELSON, A PERSON OF COLOR.

Indictment-Joinder of Distinct Offences-General VerdictArrest of Judgment-New Trial.

The joinder in one indictment of three counts, the first for burglary, the second for an entirely distinct burglary, and the third for petit larceny (which is a misdemeanor) in the same transaction alleged in the second count, with a general verdict of guilty, is no ground for arresting the judgment.

A general verdict of guilty is understood to find the higher offence, if there is testimony to support it; and such verdict is no ground for new trial. The jury, however, should be distinctly instructed as to the effect of a general verdict of guilty, and that they may convict on the one count or the other, and it is more satisfactory that they should do so. Where distinct felonies are charged in separate counts, it is a proper exercise of the discretion of the Judge to require the prosecuting officer to select one of the felonies and confine himself to it; and this he should do, although no motion to that effect be made by the prisoner's counsel. New trial ordered, because of the gravity of the effect of the general verdict of guilty-the report leaving it doubtful whether the jury had been fully instructed as to the effect of such finding, and that they might convict on any one of the counts, and because the discretion above mentioned had not been exercised.

BEFORE W. W. LEGARE, ESQ., DISTRICT JUDGE, ORANGEBURG, FEBRUARY TERM, 1867.

The report of the Judge, presiding in the District Court, is as follows:

"In this case, the prisoner was indicted, in the first count, for burglary; in the second count, for burglary, at another time and place; and in the third count, for larceny, at the same time and place, and based upon the same facts as was the second count for burglary, the alleged value of the property stolen being $11.

VOL. XIV.-12

State vs. Nelson.

"No motion was made, before verdict rendered, to quash the indictment on account of joinder of distinct offences, nor to force the solicitor to elect on which count he would rest the case.

"The case was gone into; and the proof, upon the first count, was clear that the prisoner was caught upon the premises of Mr. D. Louis, in the night of September 1, 1866, with a bunch of keys, one of which would open the door of the corn-crib, which was within fifty yards of the dwelling-house; that a bag of rice was found a few minutes after his arrest, and in the same place where he was first seen; that two barrels of rice were in the corn-crib, and a portion of the rice was missing the next morning, answering in amount to that found with the bag; that the prisoner confessed, when taken before the military authorities, that the key which was found in his possession, and which would open the lock on the corn-crib, was the same with which he had gone into the crib. Some evidence was given of maltreatment, on the part of the soldiers, of the prisoner, when he was brought before the military authorities; but it was not clear, whether the maltreatment took place before or after the confession. The lieutenant in command said to the prisoner that he had better tell the truth, or words to that effect.

"In my charge to the jury I directed them, that if they were satisfied that the confessions were made under the influence of hope or fear, induced by the agency of others, these could not be allowed to influence their decision.

"Upon the second count, it was proved that, upon the night of the 20th of October, 1866, the house of N. Austin Bull was entered, and clothing, to the value of $11, taken out; and that the same clothing was found, some time afterwards, on the person and in the house of a woman, the reputed wife of the prisoner.

"The third count, for larceny, was based upon the same facts as was the second count. The case was submitted to the