Frauds as the sale of land, and it not being in writing in this case, it was void. Briston vs. Waddington, 5 Bos. & Pull. 355; 2 Phill. Evid. 83, (and note;) Towers vs. Barrett, 1 T. R. 133; Raymond vs. Bearnard, 12 Johns. 274; Jennings vs. Camp, 13 Johns. 94; Clark vs. Smith, 14 Johns. 326; Crosby vs. Wadsworth, 6 East, 602, 609, 610; Emmerson vs. Heelis, 2 Taunt. 38.

Gale and Carmichael, for the appellees, cited Parker vs. Fassitt, 1 H. & J. 339; Stennel vs. Hogg, 1 Saund. 228, (note 1;) The Acts of 1763, ch. 23, s. 2; and 1809, ch. 153, s. 12; Coursey vs. Covington, 5 H. & J. 45; Mercer vs. Walmsley, Ibid, 27; Longchamp vs. Kenny, 1 Dougl. 132; 1 Phill. Evid. 111.

DORSEY, J. delivered the opinion of the Court. The appellees, by Richard Davis, their guardian, instituted in Cecil County Court an action for money had and received; and upon non assumpsit pleaded, the plaintiffs at the trial called William Hackett, by whom they proved that he was the crier of the vendue on or about the 18th of February, 1819, at the sale of the real estate of John Davis, deceased, by Jeremiah Cosden, the trustee, at which time the defendant became the highest bidder and purchaser; that at the time of the sale he notified the persons present, that they pur38

chased subject to these * terms: First. That the tenant should continue on the farm to the end of his lease, which would expire on the first of January then next. Secondly. That as much wheat was to be returned to Richard Davis as he had furnished for seed wheat the fall before, (the quantity of which was not mentioned.) And Thirdly, That the heirs of John Davis, (who are the plaintiffs in the cause,) should be entitled to a proportion of the rent, which was said to be a grain rent, to be calculated from the fall of 1818, when the wheat was seeded, to the day of sale. The plaintiffs then called Cornelius C. Money, by whom they proved that he was tenant on the farm at the time of the sale to the defendant; that Richard Davis, and himself, had found two hundred and nineteen and a half bushels of wheat. That the witness, in the summer of 1819, cut, gathered, and secured the crop of wheat, and delivered, by defendant's direction, to Richard Davis, one hundred and nine bushels and three pecks of wheat, and retained the same quantity for himself for seed wheat found in 1818. That he seeded one hundred and eightyseven and a half bushels of the balance of the crop on the farm, in the fall of 1819, by defendant's instruction, and divided the residue between the defendant and himself. That he afterwards, at different periods, from September to the last of December, 1819, carried the share delivered to the defendant, by his order, to William F. Corbett, of Apoquinimink, with whom he left it by defendant's order. That he sold part of his own wheat to said Corbett at different times, and saw other persons deliver wheat to him. The plaintiff then called George Ford, by whom he proved that William F.

Corbett was a merchant and wheat buyer in Apoquinimink in 1809, when the witness resided with him, and that he has continued in the same business from that time until about two years past.

The defendant then moved the Court to instruct the jury, that the evidence offered was not sufficient to maintain the plaintiffs' case. Which instruction being refused, the defendant excepted, and now calls on this tribunal to revise and reverse the opinion thus given by the Court below.

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It is the peculiar province of the Court to determine all questions of law arising before them; and the undoubted right of the jury to find all matters of fact, when evidence legally sufficient for that purpose is submitted to their consideration. And this legal sufficiency is a question of law, of which the Court are the exclusive judges. Wherever the testimony, adduced by a plaintiff, is so light and inconclusive, that no rational well constructed mind, can infer from it the fact which it is offered to establish, it is the duty of the Court, when applied to for that purpose, to instruct the jury that there is no evidence before them to warrant their finding the fact thus attempted to be proved. Such is the doctrine sanctioned by long practice and judicial determinations, as well in this State as Great Britain; and the expediency and wisdom of the principle is too obvious to be questioned.

The form of the prayer, in itself, not authorizing its rejection by the Court, can their decision be supported by the proof in the cause? Unquestionably not. "Tis true the auctioneer states it was "said to be a grain rent." But whether it be a rent payable in wheat, rye, oats, Indian corn or barley, does not appear; nor can it be collected from the proof in the case. Whether it be of one bushel or one thousand bushels of grain. Suppose, however, these difficulties obviated, and it were proved that the rent was of wheat, and the quantity stipulated in the contract of demise-Is there a particle of testimony to shew the quantity delivered; whether it be five bushels or five hundred bushels? Whether the price at which it sold be 25 cents or two dollars per bushel? Or indeed that there ever was one bushel of wheat delivered by the tenant to the appellant as rent reserved to the appellees by the terms of sale. In the absence of proof on all these important particulars, upon what basis can the verdict of the jury be predicated? Certainly not upon any evidence appearing in the record. The Court below, therefore, erred in refusing to give the instruction prayed by the appellant.

The judgment is therefore reversed, and a procedendo ordered. Judgment reversed, &c.

40* THE STATE, use of SCOFFIELD'S Adm'r vs. CRADDOCK. June, 1826.

During a contest about the will of a deceased person, letters of administration pendente lite were granted to A. who gave bond with sureties. A creditor of the deceased brought an action against the administrator pendente lite, and the writ was returned non est inventus. An action was then brought on the administration bond, against one of the sureties therein, and was pending when the contest about the will was decided, by admitting the will to probat, but no letters testamentary were taken out on the estate of the deceased.—Held, that the authority, under the letters pendente lite, was at an end when the contest about the will terminated in the Orphans' Court. Also, that suits upon the special administration bond, whether against the principal, or his sureties, might be abated by them. (a)

A surety is entitled to every privilege possessed by his principal. (b)

APPEAL from Cecil County Court. This case which is fully stated by the Judge who delivered the opinion of this Court, was argued before BUCHANAN, C. J., EARLE, MARTIN, STEPHEN, ARCHER, and DORSEY, JJ. by Gale, for the appellant; and Chambers and Stump, for the appellee.

EARLE, J. delivered the opinion of the Court. This is a suit on the administration bond of Andrew P. Redding, administrator pendente lite of Andrew I. Peterson, deceased, brought against Richard Craddock, one of his sureties. The points to be decided arise from a statement of facts agreed upon between the parties. By this it appears that Scoffield was a fair creditor of Peterson, and that Wroth, Scoffield's administrator, sued for the debt to September Term of Cecil County Court, 1822, bringing his writ against Andrew P. Redding, administrator pendente lite of Andrew I. Peterson, which was returned non est inventus. That the action was thereupon instituted on the administration bond, and was pending on the 14th of April, 1824, when the contest about the will of Andrew I. Peterson was terminated by a decision of the Orphans' Court, "that the will be admitted to probat;" but that no further proceedings have been had in said Court, or elsewhere, in relation to it. The questions to be adjudicated are, whether the letters pendente lite were at an end when the contest about the will terminated in the Orphans' Court, although letters testamentary have not been taken out on the estate of Andrew I. Peterson? And whether this defendant can abate the

(a) Cited in Colvin's Case, 3 Md. Ch. 298, as to the necessity and validity of bonds of administrators pendente lite. See Rev. Code, Art. 50, sec. 106; State vs. Blackiston, 2 H. & G. 139.

(b) Affirmed in Seldner vs. Smith, 40 Md. 615.

suit on the administration * bond, if the special administration ceased with the contest in the Orphans' Court.

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The first question depends for a solution on the nature of the letters pendente lite, and the sound construction of the Acts of Assembly on this subject; and the Court are of opinion, that the authority under the letters was at an end when the contest about the will terminated in the Orphans' Court. The authority under the letters, from the very terms of them, can continue no longer than while there is a controversy about the will, and when the contest is at an end, the power derived from the letters immediately ceases. It is like letters during the absence of the executor, the effect of which is determined on his return to the State. The Act of 1810, ch. 84, s. 6, is not opposed to this principle. The words of the proviso are, that upon a decision had on such contested will, the same proceeding shall be had, &c. thus making the special administrator answerable to the executor from that period, upon the ground that his power then ceases, and his responsibility to the executor from that point of time commences. The neglect to take letters testamentary in this particular case does not alter the principle.

If the suit had been depending against the administrator pendente lite, on the 14th of April, 1824, when the Orphans' Court decided in favor of the probat of the will, the authorities are clear, that it might have been abated by him, by a plea puis darrein continuance. So is Sparks vs. Crofts, 1 Ld. Raym. 265, and Carth. 432. The only authority that looks like opposition to this, is 3 Bac. Ab. tit. Executors & Administrators, (B 2,) 14. Bacon says, that where administration determines pending the action, the special administrator ought to retain assets to satisfy the debt attached on him by the action. But this does not deny to him the means of abating the suit. As we conceive, it only provides him with redress, in case he neglects or omits to use the plea at the next continuance, and the authorities, therefore, may be well reconciled. The question then is, can this privilege of the special administrator be extended to a suit on the administration bond against his surety? And why should it not be extended to him? Is the principal to possess a privilege which is denied to his surety? The administrator pendente lite abates all the suits against him, * settles finally with the executor, and pays over to him all the assets in his hands, and his security is to be left to contend with a creditor, without the means of abating the suit, and without the means of retaining assets to discharge the judgment, if one should be obtained against him. This law, it must be admitted, would impose unusual hardships, and it ought not to be so settled unless there is an imperious necessity for it. The Court do not feel that there is such a necessity. The matter in abatement does not go to the cause of action, or to a denial of Scoffield's claim, but it proposes to put an end to that particular suit, by reason of the peculiar situation of the defendant,

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and those with whom he is connected by his engagements. The suit might have been abated by the plea of the principal, if sued on the administration bond, for it is another remedy only against him for the same debt; and for the same reason, if it is not a stronger one, it may be abated as to the security. Judgment affirmed.

HANDY vs. THE STATE, use of TOWNSEND.-June, 1826. Where an instrument of writing purports to have been attested by a person, whose name is subscribed as a witness, it must be proved by the testimony of such witness, unless he cannot be procured, by reason of his absence, death, interest, or other disqualification, subsequent to the attestation; in which case evidence may be given of his hand-writing. and it is also usual to prove the signature of the contracting party. (a) The party is not concluded by the testimony of the subscribing witness; as, if he denies his attestation, it may be proved by other witnesses; or, if he denies the due execution of the instrument, other testimony may be resorted to, to prove it, &c.

So where it can be proved, that the name of a person appearing as a subscribing witness to an instrument of writing was written by another without his knowledge or assent, the party may be permitted to prove it, and in such case, he is not to be considered as an attesting witnessit stands as an instrument without an attesting witness, and subject to be proved by any other admissible evidence.

In an action on a testamentary bond, brought at the instance of the only daughter of the deceased, to recover two-thirds of what remained in the hands of the executrix of the personal estate of her father, after payment of debts, &c. the will of the deceased was offered in evidence, with the endorsements thereon, stating that the will was proved on the 25th of November, 1800. Also an endorsement of the same date, every line and word of which, except the date, was cancelled and obliterated by a pen being drawn through each line, purporting to be a renunciation (in substance such as is required by the Act of 1798, ch. 101, 43 sub-ch. 13, s. 2,) executed by the widow of the testator, by making her mark, and also purporting to be attested by J. B. R. the register of wills, both whose names, together with the mark, being in like manner obliterated. Also another endorsement, purporting to be a certificate by J. B. R. the register of wills, that on the same day A. T., the widow of the deceased, appeared and quitted claim to the several bequests and devises made to her in the will of her husband, and elected in lieu thereof her dower or third part of his estate, both real and per

(a) Rev. Code, Art. 70, sec. 7, enacts that in every suit in which it may be necessary to prove the execution of any instrument of writing attested by a subscribing witness, or witnesses, it shall be lawful to prove the execution of such instrument in the same manner, and by the same evidence, that the same might be proved by, if not attested by a subscribing witness,-with an exception in regard to the proof of wills. This Act does not make it unlawful to call the subscribing witness. Its object was to enlarge and not to narrow the means of proof. Keefer vs. Zimmerman, 22 Md. 285. Cf. Dorsey vs. Smith, post, m. p. 345; Pannell vs. Williams, 8 G. & J. 511.