Gregory, Administrator de bonis non, vs. Harrison.-Opinion of Court.

case stated supposes a fraud on the part of both parties to the purchase, and the collusive fraud vitiates the contract. It was no purchase on the part of the purchaser-no conversion or change of property on the part of the executor, and therefore no administration. It remained of the goods and chattels of the testator unadministered and undisposed of, and belonged of right to the administrator de bonis non.

Again, it is alleged by counsel that no one in the character of heir can maintain an action at law (or in equity,) for the personal estate of the testator, and, to entitle himself to sue, he must obtain "a grant of administration,” and distributees are supposed to be under the same inability. Again we say this is undoubtedly true, but non constat that the distributee, though disabled from suing as such for the personal estate of the testator, may not sue the proper party for a devastavit. The legal maxim asserted by counsel obviously applies to the suit of heirs or distributees for property of their ancestor in the hands of strangers, and not to their suits against executors or their representatives.

This opinion has already extended to so great a length that we shall have to pass over, without remark, some of the minor difficulties which have been suggested. We think they may all be easily removed or explained by a careful reference to the general rules which we have deduced from the law, from precedents and from authority. The great importance of these rules, in the settlement of the estates of deceased persons, and the necessity of their being well defined and clearly understood, have induced us to enter into the discussion of the principles upon which they are based, more elaborately than would be necessary on subjects of less interest, and we have regarded it as especially desirable to establish, thus early, some uniform and authorized practice in reference to the administration of estates, before loose and vicious precedents become established and consecrated by long usage, and thereby tempt the courts, through

Holbrook and Archer, Assignees, vs. Allen.-Statement of Case.

consideration of convenience, to swerve from the rigid discharge of the duties of their high commission.

Believing, as we do, that an administrator de bonis non has no authority to call to account the representatives of a deceased executor for a devastavit, and, by parity of reasoning, that he has no authority to call to account a removed executor, we are of opinion that the order of the court below, dismissing the bill of complainant, was correct, and it is therefore affirmed.

LOWELL HOLBROOK AND JAMES T. ARCHER, ASSIGNEES, &C., APPELLANTS, vs. B. F. ALLEN, APPELLEE.

The engagement of the drawer of a bill is collateral only,and ceases entirely upon failure of the holder to present it, when due, to the person who is directly liable. If it is presented and not paid, then notice must be given to the drawer otherwise, all privity between the payee and the drawer is at an end. An action for money had and received will lie for money paid by mistake. The acceptance of a bill constitutes the consideration of the indebtedness of the drawer to the acceptor.

The right of a debtor, in failing circumstances, (in making a deed of assignment) to give preference to one creditor over another, is unquestionable.

This was an action brought by Allen, in the Circuit Court of the County of Leon, against Holbrook and Archer, Assignees of the mercantile firm of Lloyd & Flagg, who failed in 1849. The suit was founded on two bills of exchange drawn upon and accepted by Lloyd & Flagg, prior to their failure. Judgment was rendered in favor of the plaintiff below at the Fall Term of the Circuit Court of Leon County, in the year 1850. From this judgment defendant appealed, and the case is brought up to this Court upon the following agreed statement of facts, to-wit:

Holbrook and Archer, Assignees, vs. Allen.-Statement of Case.

George W. Galphin, on the 18th day of March, 1848, drew his draft on the firm of Lloyd & Flagg, payable on the 21st December, 1848, in favor of one Neeley, for the sum of one hundred and sixty-seven and twenty-hundredths dollars, which was endorsed by Neeley to the plaintiff and was accepted by Lloyd & Flagg, and charged to the debit of Galphin on their books.

Lloyd & Flagg were the factors or merchants of Galphin, who is a planter, and were in the habit of accepting his bills and making advances to him, receiving his crops when made, and which were either purchased by them or him, or sold for his account, and proceeds of sale carried to his credit.

The bill in question was presented to Lloyd & Flagg for payment at or about the time of his maturity, but was not paid. No notice of such non-payment was given to the drawer.

On the 10th of January, 1849, the acceptors failed, and assigned their property, effects and assets to the defendants, in trust, to pay their debts according to certain priorities in the deed specified, and to which, if deemed material, reference is to be had. On the 11th January, 1849, the drawer, Galphin, sold to Lowell Holbrook, one of the assignees, the cotton which had been delivered prior to the assignment, and which was stored in the yard of Lloyd & Flagg, and the proceeds of such sale were passed to the credit of the account due Lloyd & Flagg. Galphin owed Lloyd & Flagg, at the time of the assignment, a note of $2,326 43-100, and a current open account of about $600, in which latter sum was included the amount of the draft which, on acceptance, had been charged as before stated. The cotton was insufficient to pay the entire indebtedness of Galphin, and a new note was given to the assignees for the residue.

It is further agreed, that on the 18th day of March, 1848, William M. Footman drew his draft on the firm of Lloyd & Flagg, payable on the 21st December, 1848, in favor of one

Holbrook and Archer, Assignees, vs. Allen.-Opinion of Court.

Neeley, for the sum of eighty-three dollars and sixty cents, which was endorsed by Neeley to the plaintiff, and was accepted by Lloyd & Flagg, and charged to the debit of Footman on their books.

The bill in question was presented to Lloyd & Flagg for payment, at or about the time of its maturity, but was not paid. No notice of non-payment was given to the drawer, according to the rules and principles of commercial law.

On the 10th January, 1849, the acceptors failed, and assigned their property, effects and assets to the defendants, in trust, to pay their debts according to certain priorities in the deed specified, and to which, if deemed material, reference is to be had. On the 11th January, 1849, the cotton which was delivered prior to the assignment, amounting to nineteen bales, was sold, and proceeds passed to the credit of Footman on the books of Lloyd & Flagg, by the defendants, assignees. Footman owed Lloyd & Flagg, at the time of the assignment, a note of $100 and an account of $100 and a debit for the amount of the draft, $83 60-100, all of which was paid by the sale of the cotton, and the residue of the proceeds of said cotton were, by agreement, passed to the credit of Edward Footman.

Judge BAKER, of the Middle Circuit, sat in the place of THOMPSON, Justice, who had been of counsel in court below. Archer,for Appellants. Allen and Woodward, for Appellee. ANDERSON, Chief Justice, delivered the opinion of the court, as follows:

This was an action of assumpsit, instituted in the Circuit Court for Leon county by B. F. Allen, against Holbrook and Archer, assignees of the mercantile firm of Lloyd & Flagg.

The following statement of facts was agreed upon at the trial:

Galphin, on the 18th of March, 1848, drew upon Lloyd &

Holbrook and Archer, Assignees, vs. Allen.-Opinion of Court.

Flagg, in favor of one Neeley, for the sum of $167.20. The draft was payable on the 21st day of December, 1848. It was endorsed by Neeley to the plaintiff, Allen, and was accepted by Lloyd and Flagg, and duly charged to the debit of Galphin on their books. Lloyd & Flagg were the factors or merchants of Galphin, who is a planter, and were in the habit of accepting bills for him and making him advances, receiving his crops when made. These were either purchased by them or sold by them on Galphin's account, and the proceeds of the sale placed to his credit.

The bill in question was presented to the acceptors about the time of its maturity, but was not paid. No notice of this non-payment was given to the drawer.

On the 10th of January, 1849, the acceptors failed and assigned all their property to the defendants in this suit, in trust, to pay their debts according to certain priorities specified in the deed.

On the 11th of January, 1849, Galphin sold to Holbrook, one of the assigneees, the cotton which had been delivered prior to the assignment, and which was stored in the yard of Lloyd & Flagg. The proceeds of the sale were placed to the credit of Galphin on an account due by him to Lloyd & Flagg. At the time of the assignment Galphin was indebted to his factors, (Lloyd & Flagg,) by note $2,326.43, and a current open account of about $600, in which last sum was included the amount of the draft. The cotton was insufficient to pay the entire indebtedness of Galphin, and a new note was given by him to the assignees for the bal

ance.

It was further agreed that one Footman had drawn on the same parties for $83 60, at the same time and under the same circumstances. The material facts are the same in this case as in the other, except that the proceeds of the sale of Footman's cotton exceeded the amount of his indebtedness to Lloyd & Flagg, and the excess was placed to