Tomlinson v. Tomlinson

Court of Appeals of South Carolina

Tomlinson v. Tomlinson

44 S.C.L. 404

DecidedMay 15, 1857

StatusPublished

This text of 44 S.C.L. 404 (Tomlinson v. Tomlinson) is published on Counsel Stack Legal Research, covering Court of Appeals of South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Tomlinson v. Tomlinson, 44 S.C.L. 404 (S.C. Ct. App. 1857).

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Opinion

Tbe opinion of the Court was delivered by

O’Neall, J.

Tbe defendants are tbe administrators of Henry'M. Tomlinson, deceased. They undertook, and were allowed on tbe trial of tbis cause to show Ms insolvency, so [406]*406that slaves found in bis possession, and claimed to be tbe property of tbe plaintiff, might, on account of tbe legal fraud on creditors, be adjudged to be bis property. Tbe case of Crosby vs. Shelton, cited in Chappell vs. Brown, 1 Bail. 531, ruled that an administratrix could not set up tbe indebtedness of ber intestate, as a ground to defeat bis gift of chattels. This ruling was recognised, and affirmed in Anderson vs. Belcher, 1 Hill, 249, note. These decisions proceed upon tbe ground, that tbe administrator represents tbe person of bis intestate, and cannot set up anything which be could not. Here beyond all doubt tbe deceased could not set up bis own indebtedness and insolvency, against bis father’s claim to property, in bis possession.

Tbe motion for a new trial must therefore be granted on tbe seventh ground, and it is accordingly so ordered.

WhitNer, Glover and MüNro, JJ., concurred.

Motion granted.

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Tbe opinion of the Court was delivered by

O’Neall, J.

Tbe defendants are tbe administrators of Henry'M. Tomlinson, deceased. They undertook, and were allowed on tbe trial of tbis cause to show Ms insolvency, so [406]*406that slaves found in bis possession, and claimed to be tbe property of tbe plaintiff, might, on account of tbe legal fraud on creditors, be adjudged to be bis property. Tbe case of Crosby vs. Shelton, cited in Chappell vs. Brown, 1 Bail. 531, ruled that an administratrix could not set up tbe indebtedness of ber intestate, as a ground to defeat bis gift of chattels. This ruling was recognised, and affirmed in Anderson vs. Belcher, 1 Hill, 249, note. These decisions proceed upon tbe ground, that tbe administrator represents tbe person of bis intestate, and cannot set up anything which be could not. Here beyond all doubt tbe deceased could not set up bis own indebtedness and insolvency, against bis father’s claim to property, in bis possession.

Tbe motion for a new trial must therefore be granted on tbe seventh ground, and it is accordingly so ordered.

WhitNer, Glover and MüNro, JJ., concurred.

Motion granted.

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Bluebook (online)

44 S.C.L. 404, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tomlinson-v-tomlinson-scctapp-1857.