not knowledge or information of the defect of title before the sale made, or at least before paying over the money.

And in addition to the examples already stated, I will add the case of a person who has a power of attorney from B. authori. sing him to sell a tract of land claimed by B. as his property. The attorney under this power sells, receives the money, executes a deed to the purchaser and pays the money over to B. all which he doth bona fide, having no knowledge or information that B's title was defective. Surely it never can be pretended that, should the purchaser be evicted, the attorney could be made personally answerable.

All these cases I consider analagous to each other.

I will next examine the deed to determine whether the said Thomas and Joseph Williams have by any clear and unequivocal engagement made themselves personally responsible.

And here I may be permitted to say, that where property is sold for the benefit of others, and the money arising from the sale is to go exclusively to the benefit of others, and not to the seller, it cannot be supposed the seller would make himself personally answerable, so that, should the property sold be evicted, he would be obliged to make compensation for it out of his own property, unless he were a fool or a madman. And this extreme improbability against such act being done is a correct criterion by which we may examine, and decide upon the act which has been done; I mean the deed executed by Thomas and Joseph Williams to Sumner and wife,

This deed begins by stating themselves to be "the administrators of all and singular the goods, chattles, rights and credits of William Dudley." This shows in what capacity they convey. They further, to prevent all mistake, declare that the conveyance they make is under a licence from the Justices of the Court of Common Pleas to sell the real estate, of which said Dudley died seized in fee simple; they state that under this licence they only sell the "equity of redemption," that Dudley had in the premises, which had been before mortgaged by Dudley to Thomas, and which mortgage was that day sold to Sumner and wife. It is therefore most explicitly stated, that the property they were convey.

ing, was not property in which they had any interest in their own right, but only as being administrators of Dudley, and acting for his creditors.

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They declare that the sum of 3057. 58, the consideration money, was paid to them in their capacity of administrators; and that in their capacity of administrators, they had given,' granted' and'söld" the said equity of redemption. It is also in their capacity of ad." ministrators, that they covenant, "that they as administrators as aforesaid, were lawfully seized of the premises," (which cannot possibly mean any thing more than that they had letters of administration duly granted, and had a licence from the court to sell,) they could not, as administrators be seized in any other manner, as Mr. Sumner must have well known. The next part of the covenant is still in their capacity of administrators, “that the premises were free and clear from all incumbrances by them, or with their knowledge made, saving and excepting, &c. This not only shows they acted merely as administrators, but is an additional proof they meant not to make themselves in their own right answerable for the goodness of the title. The next branch of the co venant which is also made in their capacity as administrators, is that they have "in their said capacity, 'good right to sell and con-** vey the same." This cannot possibly be considered as going further than a covenant' that they had regularly obtained letters of administration, and had obtained the courts license to sell, and Sumner could not but know that they had no other right to sell of"

convey.

The last engagement, and that which most probably is relied upon, is the following clause'in the said deed;'" and that as administrators as aforesaid we will warrant and defend the same to the said Increase Sumner and Elizabeth, their heirs and assigns forever against the lawful claims and demands of all persons." This is the concluding part of a covenant expressly in its beginning stated to be made by them as administrators; 'and in this concluding clause they expressly state that it is as administrators aforesaid they will warrant and defend, &c. The whole of their engagement must be taken together and upon this principle this last clause cannot bind them further, than that if it should be dis

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covered that there was an adverse title, or should the purchasers, be evicted, they would repay the purchase money to the purchasers out of the money or funds, which they might have in their hands as administrators. And had the defect of the title been discovered, or the eviction taken place, while the administrators had property of the deceased in their hands,, probably the admin-, istrators would have been bound under this part of the covenant. to have repaid the purchase money out of such funds. But, they having paid away the money in due course of administration without any notice are, I consider, like the agent, who recovers money for his principal and pays it over without notice, free from any claim against them.

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To say that under this deed Thomas and Joseph shall be answerable in their own right, and pay out of their own property, is to declare that, when a person, acting as administrator, covenants as administrator, that as administrator he will warrant, it shall have the sam same effect and operation, as if he had acted in his own right, covenanted in his own right, and that he would in his own right warrant.

Why were the words "that as administrators they covenanted" andas administrators they would warrant" inserted, but explicitly to show they meant not to make themselves answerable in their private capacity, or out of their private fortunes? And what possible motive could administrators have, to make themselves answerable personally, and out of their own fortunes, for the sale of their intestate's property, the proceeds of which they were to pay over to his creditors or representatives?

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Here also let it be observed that not only in signing the instru ment they sign it as administrators, but also in the acknowledg ment they repeat it was done as administrators; and further that in no part of the deed is there introduced any covenant, which goes directly to the right that the deceased Dudley had in the land; I mean in no part of the deed is there any covenant or warranty,., that Dudley had an indefeasible estate in fee simple in the land; or in fact that Dudley had a good title of any kind.

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Why, I would ask, if they meant to be answerable in their own right, and be liable under that conveyance out of their own pro

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perty, should the title be defective, why, I say, all this waste of ink, paper and words, describing themselves from the beginning to the end of the instrument as being only administrators,—as acting only in that capacity?

There can be no question but that the expressions above refered to were inserted to hold up the idea that the administrators were not meant to be considered answerable to their own rights. There can be no question the administrators considered it in the same point of view; and if gov. Sumner who received the deed, ́ meant notwithstanding, to hold them personally answerable, he practised upon them a deception and fraud, which, I presume, no person would wish to attach to his memory.

I will now produce some few authorities to show that where persons have acted en autre droit, and as agents for others, have been determined not to be personally answerable, though they have used much stronger language, from which it might be argued or inferred that the persons meant to make themselves answerable.

The first case I shall refer to is M'Beath vs. Haldimand 1 Term. R. 172 to 182; where it was determined that, as Haldimand acted in his capacity of governor, he was not answerable for goods supplied by the plaintiff under his direction. And the court there said it was of no consequence, as to their decision, whether the plaintiff could have any other remedy, or where he was to look for it. Justice Ashurst declares, page 181, "the true question must be what was the meaning of the parties at the time of entering into the contract." In our case, every word in the deed from Thomas and Joseph Williams shows their meaning to have been, that they were only to be answerable as administrators, and not personally; that they contracted not personally, but only as administrators. He also says that "no man would accept of an office under government on such conditions." So may it, with truth be said, no person would accept the appointment of executor or administrator, if, for all that property, which comes to their possession as belonging to the deceased, and which they sell, they should themselves, after having fully administered, be held an

swerable out of their own property, should it happen that the title of the deceased to such property turned out to be defective.

Umwin vs. Wolsely, 1 T. R. 674, is also a strong case in favor of my construction. It was there determined that Wolsely was not answerable for the freight, because although he had executed the charter party himself, yet he had described himself in the premises, as " captain Wolsely, commander of his Majesty's ship Magnanime, &c., on account of his majesty, of the one part," and covenanted " that on account of the king he would," &c.

But it is believed, that the case of Hodgson vs. Dexter decided in the Supreme Court of the United States, and reported by Cranch 345, is conclusive on this point. In that report the lease to which Mr. Dexter was party is stated verbatim. Mr. Hodgson for money paid to him by Mr. Dexter makes him a lease for eight months to be held by him (who was not a body corporate) and his successors, with a covenant on the part of Mr. Dexter that he and his successors should and would at all times during the said term, keep or cause to be kept in good and sufficient repair the said demised premises, &c.

The house was burned down, while he was Secretary of War, and within the eight months, and, an action of covenant being brought, the court determined that, notwithstanding the words of the covenant, as he was in the premises called Samuel Dexter, Secretary of War, the word "said" in the whole lease, where his name was mentioned, should be as forcible in his favor, as if the words "Secretary of War," had been in each instance repeated; and that as to the signing and sealing, it being stated that the "said" parties have hereto, &c., it should operate as to Dexter, to the same effect as if he had signed " Samuel Dexter Secretary at War;" and that these circumstances, together with the use of the word "successors," were sufficient to show that it was the intention of the parties he should not be liable in his private capacity, or in other words that he was not to be personally answerable.

As to the word "successors," the court only availed themselves of it as indicative of the intention and understanding of the parties, that Mr. Dexter contracted only in his capacity of Secre