1848. April Term.

V.

& als.

mentioned, was not made between the proper parties. This sufficiently appears upon the face of the judgment itself, and more distinctly from the writ and inquisition Wallop's adm'r which it quashed; and into these we are at liberty to Scarburgh look, though not incorporated into a bill of exceptions, inasmuch as they must of necessity have entered into the consideration of the Court below, and formed the basis of its judgment, which without reference thereto would be wholly inoperative, and consequently a mere nullity. It was therefore the duty of the clerk of that Court to treat those record proceedings, which were the very subject of the Court's action, as part of the record of the cause; and they cannot be regarded by the Appellate Court, as irrelevant or unauthenticated.

It thus appears that the motion to quash was not made by the defendants in the execution, nor against the plaintiff therein, but by persons claiming under the latter, we know not how or what, against a person claiming under the former, in what way we can only conjecture. It seems that the defendant in the motion was the administrator of the assignor of the debt for which the plaintiff in the execution recovered his judgment; but that could give him no claim under the execution. It may have been that he claimed by an assignment of the judgment or execution, but neither of these is assignable at law, and he could acquire only an equitable interest therein.

It matters not, however, what may have been the respective claims of the plaintiffs and the defendant in the motion: they could in the nature of things have none that a Court of Law will recognize upon such a motion, which must be founded upon the irregularity or abuse, or discharge of the process, in reference to the parties thereto; and others who are not parties thereto, and cannot be made so, must resort to other remedies, if any they have.

It is true that a stranger may acquire an equitable right to the benefit of the execution, or to the property

1848.

April
Term.

V.

upon which it is levied, and such equitable right may in most cases give him authority to sue out and conduct the process, or to object to its regularity or validity; but Wallop's he cannot do so by proceedings in the case, in his own adm'r name, upon or against the process, for the purpose of en- Scarburgh forcing or abrogating the same: he must do it in the & als. name of a legal party to the process, or one who can be made so. And this authority so derived to use the name of a party to the process of a Court of Law, will be so far recognized by such Court as to preclude the intervention of such party, for the purpose of defeating it. But a Court of Law cannot tolerate the intromission of equitable claimants into or against its process, as if they were legal parties thereto; which would break in upon its forms and modes of administering justice, and present for its adjudication collateral and indeed irrelevant questions arising out of the derivation of their interests; for equitable claimants can acquire no better or other right to prosecute or defend the process under or against which they claim, than that of the parties from whom they derive their interest.

This view of the subject renders it unnecessary, and indeed improper, to decide whether the motion in question could have been sustained upon its merits, between proper parties thereto. It is enough that the plaintiff in error is aggrieved by being harassed and subjected to costs, on a motion to which he and the appellees were not proper parties.

It is therefore considered by the Court that the judg ment of the Circuit Court is erroneous; and that the same be reversed and annulled, with costs. And this Court proceeding to render, &c., it is further considered that the motion of the defendants in error is dismissed with costs.

1848. April Term.

Richmond.

ROSSER ex'or of WOOD v. DEPRIEST & als.

(Absent Cabell, P. and Daniel, J.*)

1. An ex'or sells a slave belonging to his testator's estate, the sale not being necessary to the payment of debts, and he repurchases the slave, and thereafter holds him as his own. HELD: The slave is the property of the estate; and the ex'or shall account for his annual hires, with interest thereon; though he was not in fact hired out by the ex'or, but was kept in his own employment.

2. An ex'or takes bonds for purchases made at a sale by himself of testator's personal property, and it does not appear when these bonds were paid off; he will be charged with the principal of the bonds in the year when they fell due, but with interest thereon only from the end of that year.

Edmund Wood died in 1823. By his will, which was admitted to probat in the County Court of Campbell in December 1823, he devised and bequeathed his land and slaves specifically among his children; disposing of all his slaves but one negro man named Squire. The share of his daughter Mrs. Martha Depriest, he gave in trust to John Rosser for the separate use of Mrs. Depriest and her children; and he appointed Rosser his executor, who qualified as such in December

1823.

The property specifically devised seems to have been divided according to the directions of the will. Rosser retained the boy Squire in his possession until May 1825, when he offered him at public auction, and he was knocked out to a slave trader; and on the same day Rosser repurchased him, and held him afterwards as his own property. At the time of the sale, or at any time afterwards, it was not necessary to the payment of the debts of the testator.

*Judge Daniel had been counsel in the cause in the Court below.

1848. April Term.

Rosser

The executor never having settled an account of his administration, Mrs. Depriest and her children filed their bill against him in 1835, in the Circuit Court of Campbell, seeking for a settlement of his administra- ex'or of tion accounts, and also an account of the trust fund in his hands; and claiming that the boy Squire was a part Depriest of the estate of Edmund Wood, in which they were entitled to share.

The executor answered the bill, professing his readiness to settle his accounts, but insisting that he had fairly sold the boy Squire, and had afterwards purchased Lim from the first purchaser, and had ever since held him as his own property.

The accounts were referred to a commissioner, who returned a report, to which both parties excepted. It appeared that the bonds taken at the sale of the personal property by the executor, fell due on the 8th of Jannary, 1825; and there being no evidence before the commissioner to show when they were collected, he brought them into the account at the time they fell due, and charged interest thereon from that time. To this charge the defendant excepted. The plaintiffs excepted to the report, because the commissioner charged the executor with the price at which the boy Squire was sold, and omitted to charge him with reasonable hires for the boy, and interest thereon.

When the cause came on to be heard, the Court overruled the defendant's exception, and sustained that of the plaintiffs, so far as to set aside the sale of the slave Squire, and hold the executor liable for reasonable hires for him, but not for interest thereon; and a decree was made recommitting the report, and directing a sale of the slave Squire for the purpose of a division among the distributees of Edmund Wood. From this decree Rosser applied for and obtained an appeal to this Court.

Wood

V.

& als.

The cause was argued by Cooke, for the appellant, and Grattan, for the appellees.

BALDWIN, J. delivered the opinion of the Court.

The appellant's sale and repurchase of the slave Squire, belonging to his testator's estate and undisposed of by his will, gave him no title to said slave; such sale having been unnecessary for the payment of debts due from the estate; and the law therefore making it the duty of the executor to reserve him in kind for the distributees. The accountability of the appellant for said slave is consequently the same as if such sale had not been made, and he is bound to surrender him for distribution, and to account for hires, and for interest thereupon, in like manner as if he had hired him out and collected the hires. There is therefore no error in so much of the decree of the Circuit Court as directs the sale of said slave by a commissioner, with the view of distributing the proceeds thereof amongst the appellees entitled thereto, and as holds the appellant chargeable with such hires from the time of his qualification until such sale shall be made. But the decree is erroneous, to the prejudice of the appellees, in exonerating the appellant from accountability for interest on the hires, instead of directing that in the settlement of his accounts the hires of said slave shall be debited to the executor in the respective years in which they should have fallen due, so as to affect the annual balances upon which interest is allowed. And the said decree is erroneous, to the prejudice of the appellant, in not directing the executor, instead of being debited with interest as well as principal on the sale notes from the time they fell due, to be debited with the principal only of said notes in the year when they fell due, without interest, except such as is allowed on the annual balances. It is therefore ordered and decreed, that so much of the de