Harris v. Mauldin, et als. one or more of several wrong doers, against whom nothing is proved, may be acquitted and examined as a witness for his co-defendants. Rigdon's Heirs v. Rigdon's Devisees, 6 J. J. Marsh. Rep. 53; State v. Shaw, 1 Root's Rep. 134; Barney v. Cutter, Id. 489; Wakeley v. Hart, 6 Binn. Rep. 316; Brown v. Howard, 14 Johns. Rep. 119; Van Dusen v. Van Slyck, 15 Id. 223; State v. Blennerhassett, Walker's Rep. (Miss.) 7; Bates v. Conkling, 10 Wend. Rep. 389; Gilmore v. Bowden, 3 Fairf. Rep. 412; Sawyer v. Merrill, 10 Pick. Rep. 18; Wynne v. Anderson, 3 Carr. & P. Rep. 596; Child v. Chamberlain, 6 Id. 213; King v. Baker, 2 Adolp. & E. Rep. 333; Carpenter v. Jones, 1 Mood. & M. Rep. 198; Wright v. Paulin, 1 Ryl. & M. R. 128; Wilmarth v. Mountford, et al. 4 Wash. C. C. Rep. 79; Lanning's Lessee v. Case, et al. Id. 169; Schermerhorn v. Schermerhorn, 1 Wend. R. 119. But where the least evidence is given against one of several wrong doers who is sued jointly, he cannot be discharged on the trial, for the purpose of being examined as a witness. The want of evidence against a party, it has been said must be so glaring and obvious, as to afford strong grounds of belief, that he was arbitrarily made a defendant to prevent his co-defendants from availing themselves of his testimony. In Brown v. Brown, ut supra, which was an action of trespass against the captain of a vessel and two others, for an assault and battery on the plaintiff, who was a seaman on board the vessel, it was proved that the two other defendants, who were the mates of the vessel, tied the plaintiff, whom the captain had beaten: It was held, that the evidence against the two defendants was such, that they were not entitled to an acquittal for the purpose of being examined as witnesses for the captain. The cases cited do not perhaps lay down a less restricted rule than this decision affirms. The question to be determined is, does the evidence recited in the bill of exceptions, implicate Burns and Simmons in the supposed tort of Mauldin, so that the circuit judge could not with propriety have directed their acquittal for the purpose of making them witnesses for Mauldin. In order to solve this inquiry, it is necessary to examine the facts. First, then, in respect to Simmons, he was awakened at a late hour of the night by Mauldin and the constable, went with them Harris v. Mauldin, et als. at their request two miles and a half to point out the plaintiff to the constable-he accordingly awakened Harris, while the latter was sleeping in his own wagon, invited him to the camp fire under the pretence of talking with him, and there introduced him to the constable, who took his hand and executed the warrant. In addition, it may be stated that Simmons was a man of family, and the slave whom the plaintiff had taken into his possession, was, at the time all this occurred, at his (Simmons's) house. Simmons was present at Mauldin's house when the plaintiff was carried there, the morning after his arrest. As the constable, with Mauldin and others, was going professedly to the justice of the peace who issued the warrant, they stopped at the house of Simmons, where Mauldin went to bed, saying, either that he was drinking or sick. There the prosecution was compromised, and the plaintiff suffered to go at large, though Simmons does not appear to have had any direct agency in the compro mise. Burns, it seems, was the hirer of the slave from Mauldin, and delivered him to the plaintiff previous to the institution of the proceedings against the latter, and was at Mauldin's house when Mauldin went for the warrant, and remained there until the next morning. He was in company with Mauldin when the latter had an angry controversy with the plaintiff in respect to the right to the slave on the evening before the arrest. Burns was also at Mauldin's house when the plaintiff was taken there in the custody of the constable; and was present at Simmons's, and an active agent of Mauldin in settling the prosecution against the plaintiff. The mere recital of the facts is quite sufficient to show that Simmons and Burns were not so wholly disconnected with the matter complained of, as to authorize their discharge and examination as witnesses. Whether they were associated with Mauldin, encouraged, aided, or prompted him to prosecute the plaintiff-the motive of their presence upon the several occasions referred to, and the quo animo with which they acted were properly referable to the jury; and could not have been determined by the court. In directing, therefore, a verdict of acquittal as to these defendants, the cir Phelan v. Phelan, et al. cuit court erred. The judgment is reversed, and the cause remanded. Judge CHILTON not sitting. PHELAN v. PHELAN, ET AL. 1. Although an estate is declared insolvent, yet if on settlement it prove not to be so, creditors who have not filed their claims within the time prescribed by law, are entitled to payment of their debts, if presented to the administrators within eighteen months from the grant of letters of administration. Error to the Orphans' Court of Wilcox. THE plaintiff in error, administrator de bonis non of the estate of William Phelan, deceased, represented the estate to be insolvent, and it was accordingly so declared, no creditor appearing to show cause; and no nomination being made by the creditors, he was continued in the administration, an order made that all creditors should file their claims, and a day set for auditing them. Upon the settlement, it appeared the assets in the hands of the administrator amounted to $5,498 58, and the amount of claims filed within six months, $3,086, which being allowed, left in the hands of the administrator, $2,411. The administrator then insisted on retaining in his hands, a sufficiency to pay certain judgments, which had been rendered against him; and proved that the claims on which they were founded, had been duly presented to him as administrator, and all of which, except one, he had paid since the estate had been declared insolvent. The court on the Phelan v. Phelan, et al. objection of the distributees, refused to permit the administrator to retain these amounts, and rendered a decree against him, for the balance in his hands, in favor of the distributees. To reverse this decree, this writ of error is sued out. SELLERS, for plaintiff in error. PORTER & BRODIE, contra. These claims not having been filed within six months after the estate was declared insolvent, are barred. Lattimore v. Williams, 8 Ala. Rep. 428; Hollinger, et al. v. Holly, et al. Ib. 454. If barred by the statute of non-claim, the administrator had no right to pay them. Thrash v. Sumwalt, 5 Ala. R. 20, and cases decided at this term. The record shows that these very items were refused on being presented at the auditing, by the holders of these claims. They are consequently barred. Creditors can have no advantage from the fact that the estate afterwards proves solvent, because the declaration of insolvency is as to him res judicata. An administrator de bonis non, after an estate is declared insolvent, has nothing to do with any period of time prior to his appointment; he is different from other administrators; he is the mere agent of the creditors, and can only look back to the insolvency. DARGAN, J.-The orphans' court misapprehended the law. If a claim is presented to the administrator within eighteen months from the time of the grant of letters, it is a good presentation, so far as the interest of the distributees is concerned; and a claim so presented binds their interest. If, however, the estate is declared insolvent, since the act of February, 1843, the claim must be filed in the clerk's office of the orphans' court, within six months from the time of the rendition of the decree of insolvency, otherwise such creditor cannot participate with the other creditors in the distribution of the estate. See 8 Ala. Rep. 454. The statute of McKinley v. Irvine, et al. 1843, is intended merely to affect the rights of creditors, as amongst themselves, in the distribution of an insolvent estate; and if a creditor does not file his claim in six months from the time the estate is declared insolvent, those creditors who have so filed their claims, shall be preferred over those who have not. But this is the only effect that can be given to a failure to file a claim in the clerk's office, within six months from the time the estate is declared insolvent. And if an estate be declared insolvent by mistake, as this appears to have been, ́and it afterwards appears that it is able to pay all the debts, the distributees can claim nothing from a failure to file the claims in the clerk's office within six months. Their rights are bound, if the claim is presented to the administrator within eighteen months. Hence it follows, that as the claims on which judgments had been rendered against the administrator, had been presented within the eighteen months, they should have been allowed as against the distributees. The final decree of settlement is therefore reversed and remanded. McKINLEY v. IRVINE, Et al. 1. A reference to the master, to ascertain the sum which by the decree is ordered to be paid to the complainant, does not render it interlocutory, when the principles are settled by the chancellor by which the amount is to be ascertained. 2. An allegation in a bill, by which the complainant deduced his title to three shares of stock, in an unincorporated company, averring that the shares were purchased by one H, principally with the means of one J M, to whom the certificates of the stock were delivered, and a power of attorney executed to one B, by H, to transfer the title to J M, but which was not done. That J M departed this life, and B and H executed a power of 13 881 107 341 13 6815 133 578 13 681 135 607 |