Hines vs. Poole.

an unjust bill; the defendant's property may have depreciated so as not to bring the debt, and he may have been thereby injured. In the case of Hackett vs. Green, 32 Georgia Reports, 512, under circumstances and facts very similar to this case, where a claim to a negro had been interposed after the sheriff had incurred liability by failing to sell the negro, this court directed the rule against the sheriff to be kept open until it was ascertained whether or not, and how much, the plaintiff was injured by the illegal conduct of the sheriff. We shall follow the lead of that case, and reversing the judgment making the rule absolute, we direct that the court below hold the rule nisi in this case open to await the final decision of the injunction cause.

Judgment reversed.

ELLA S. HINES, administratrix, plaintiff in error, vs. EPHRIAM H. POOLE, defendant in error.

(BLECKLEY, Judge, was providentially prevented from presiding in this case.)

1. Where a person is employed as a general agent to transact business for an administratrix, and afterwards dies, his sayings, in connection with such agency, are admissible to bind the estate.

2. Where one party to a contract is dead, the other is a competent witness to show that the consideration thereof inured to the benefit of the estate of the deceased after his death.

Administrators and executors. Principal and agent. Evidence. Witness. Before Judge WRIGHT. Decatur Superior Court. November Adjourned Term, 1875.

The following, taken in connection with the decision, presents the facts of this case:

E. R. Peabody testified that C. C. King, the father of Mrs. Hines, had been her general agent for the management of the estate of her intestate, D. P. Hines; that he stated to witness that the Hodgkiss' Scott & Company claim had been arranged

Hines vs. Poole.

by Mrs. Hines giving her note, as administratrix, for the amount; that said King was now dead; that the consideration of the debt was merchandise, most of which was sold after the death of intestate, and the proceeds turned over to his administratrix or her agent.

T. H. Hodgkiss testified that the note was taken in settlement of an account for goods; that many of the articles were on hand at the time of intestate's death, and were in the possession of his administratrix; that the consideration of the debt inured to the benefit of intestate's estate; that witness was senior member of the firm of Hodgkiss, Scott & Company, the payees of the note; that he has no pecuniary interest in this suit, the note having been transferred to Poole.

FLEMING & RUTHERFORD; GURLEY & RUSSELL, for plaintiff in error.

WHITELEY & DONALDSON, by Z. D. HARRISON, for defendant.

WARNER, Chief Justice.

This was an action brought by the plaintiff against the defendant, on a promissory note signed by the defendant, as administratrix on the estate of D. P. Hines, with an averment that said note was given in payment of an account due by the intestate and for the benefit of his estate. On the trial of the case, the jury, under the charge of the court, found a verdict in favor of the plaintiff for the sum of $566 46, principal, with interest. The defendant made a motion for a new trial on various grounds, which was overruled by the court, and the defendant excepted.

Many of the questions made by the plaintiff in error, were settled when this case was before this court on a former occasion: See 52 Georgia Reports, 500.

1. There was no error in admitting the evidence of Peabody as to the sayings of King, the defendant's general agent in the management of her intestate's estate, the agent, King, being dead.

Gaudy vs. Babbitt et al.

2. There was no error in admitting the evidence of HodgKiss, as against the defendant, because her intestate was dead; the witness was only offered to prove that the account for which the note was given inured to the benefit of the estate, and not to prove any contract made with the intestate. In view of the evidence contained in the record, there was no error in the charge of the court to the jury, or in refusing to charge as requested.

Let the judgment of the court below, overruling the motion for a new trial, be affirmed.

B. H. GAUDY, trustee, plaintiff in error, vs. FLOYD L. BABBITT et al., administrators, defendants in error.

1. When a trustee, as such, has given his promissory note for the debt, and the note is declared upon, the same is admissible in evidence.

estate.

2. But the note itself is not sufficient to warrant a recovery against the trust The plaintiff must go further and establish his whole declaration, proving the existence of a trust estate, of what it consists, and the specific facts which render it liable for the debt. This he must do if there be no plea but the general issue, or even if there be no plea at all.

Trusts. Evidence. Before Judge WRIGHT. Superior Court. November Adjourned Term, 1875.

Decatur

Babbitt and Touge, as administrators of S. Davis Touge, deceased, brought complaint against Gaudy, as trustee for Mary Gaudy, upon the following note:

"$90 00.

"BAINBRIDGE, May 8th, 1867.

"On or before the first of December next I promise to pay to the order of S. Davis Touge $90 00, for value received.

(Signed)

his

mark.

"B. H. GAUDY, trustee."

The declaration was, in substance, as follows: Your petitioners aver that said note was given by the said Gandy, as trustee for Mary Gaudy, for a bill of cotton yarns for the use of said cestui que trust and family, and for certain cash paid by the payee to Belcher & Terrill, for goods purchased

Gaudy vs. Babbitt et al.

for the use of said cestui que trust and family, and at the special request of such trustee, etc.; that all of the aforesaid indebtedness was credited for the special benefit of the aforesaid cestui que trust and her trust estate, consisting of lots of land (enumerating them) which were controlled by the said trustee, and operated by him at the time, in the production of cotton, corn, and other agricultural products, for the sole use and benefit of the said cestui que trust and family.

To the declaration were attached a copy of the note, and an itemized account upon which it was alleged to have been based.

The defendant pleaded the general issue and the absence of authority in him to sign the note.

No evidence was introduced beyond the note and the testitimony of Touge, to the effect that the note was given for yarns bought by defendant for his wife, from the intestate; that the note was in the handwriting of the intestate; that the defendant was the trustee for his wife, Mary Gaudy.

The jury found for the plaintiffs the amount sued for, to be recovered out of lots of land (specifying those enumerated in the declaration). The defendant moved for a new trial upon the following grounds, to-wit:

1st. Because the verdict was contrary to law and evidence. 2d. Because the court erred in charging the jury that if the plaintiffs had alleged in their declaration the consideration of the note sued on, that it was for necessaries for the trust estate, that a trust estate existed, of which defendant was the trustee, and of what it consisted, and these allegations were not denied by other pleas than were filed in this case, then they need not be supported by any proof; that the fact that they were not so denied amounted to an admission of them.

3d. Because the court erred in admitting the note sued on in evidence over the objection of defendant.

The motion was overruled and the defendant excepted.

BROWN & CRAWFORD, for plaintiff in error.

No appearance for defendants.

BLECKLEY, Judge.

Gaudy vs. Babbitt et al.

1. The general rule stated in 1 Parsons on Contracts, 121, and in Story on Bills, sections 74, 75, that a trustee cannot bind the trust by executing a note, has not been relaxed in this state as to executors, administrators or guardians: 39 Georgia Reports, 130; McFarlin vs. Stinson, 56th Ibid., 396. But in 25 Georgia Reports, 140, a distinction is taken, as to the ordinary trustees, which ought to be maintained. On principle, it is difficult to say why a trustee who can contract a debt at all, cannot do so by note. Why should there be a capacity to make a verbal promise and not a written one? It is, however, not necessary to search for principle when we have a decided case which is both authoritative and satisfactory. The note before us is not so explicit as that recited in the case to which we refer; but it is signed by Gaudy, with the addition of trustee to his name, and is declared upon as made in his representative character; and there is no denial of its execution, though the authority to execute it as trustee is denied. The sworn plea which presents this point is, in effect, a mere demurrer. We think the note was admissible in evidence, and so rule.

2. But it fell far short of making out the plaintiffs' case. And the parol evidence superadded was only to the effect that Gaudy was trustee for Mrs. Gaudy, and that the note was given for yarns bought by him for her. The terms of the trust were not shown, so as to disclose to the court and jury what were its scope and purpose; who, if any, besides Mrs. Gaudy, were the benficiaries, or what, if any, restrictions. were imposed on the trustee's power. Neither did it appear of what the trust estate consisted, or what was its value, or whether it yielded an income, or whether encroachment upon the corpus would be necessary or proper. Neither did the condition in life, the circumstances or the wants of Mrs. Gaudy appear. While, under section 3377 of the Code, a claim against a trust estate may be enforced at law, the plaintiff, by his pleadings and proof, must make a case in which a