Cain v. . Hawkins ( 1857 )

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.