not from the third. It would be otherwife if the tCdzee, or his Atiieen,
fhould fell the flave, and he afterwards prove the property of another;
- for in this cafe the obligations of the fale do not reft upon thofe of-
‘ffcers, but the purchafer comes at once upon the éftate for ah equivalent
to the price loft or deftroyed as above ; finite otherwife'the door
o f magiftracy would be fhut, and the rights of mankind confequently
injured, as no man will undertake the -office -of Kdzse unlefs he be
exempted from refponfibility. It is to be obfefved that what is now
'advanced, that “ the executor is'to take an equivalent'from the ëf-
“ fefls of the deceafed,” proceeds on the ftlppofition of thefe being
fuffieient to artfwer'this-purpofe; -for if they be inadequate to it,'the
executor is entitled to an indemnification -only in the -gretteft poflible
degree ; and if the deceafed fhould have no effixfts -whatever, 'the executor
(like any other creditor) has no claim for indefnttifioâtïOn.
bu t if this If an executor fell a flave which had fallen to the fhare of a child
laih'he'may of the deceafed, and take pdfieffion of the price, and it-beafterwards
hlmfhifToin ’n ^anc^s> and flave prove the property of another perfon,
the perfbn to the purchafer has in that cafe a claim for reftitution frôfti the ë-xèeutor,
Oclehadfdl- who is entitled to indemnify himfelf from the fhare of the child in
en b y inhe- vvhofe behalf he'aéted ;— -and the child is entitled to an équivalent from
n tance. , 1 the fhares of the other heirs ; for upon the flave proving the property
of another perfon, the diftribution of inheritance, às: at fir ft1 èxéc-Uted,
is annulled, the cafe being, in fact, the fame-as i f no luoh flave had
eVerexifted, or been accounted upon as part of the Cftikte.
An executor If a perfon indebted to an orphan "give a transfer "On' fbfne Other
transfe^for a perfon, and the executor (the guardian of the orphan) accept the fame,
fuch acceptance is approved, provided it ' be for the interéft o f the
ward, orphan, becaufe of the perfon on whom the transfer is 'made‘being
richer (for inftance) than the transferrer, and alfo a man of probity;
for the power of adting is veftëd in the executor, merely that he may
employ it for the interëft of the Orphan:— bût if the transferrer be
richer
richer than the other, the acceptance is not approved, -as being, in its
tendency, prejudicial to the orphan.
It-is lawful for an executor to fell or purchafe moveables, on account
of the orphan under his charge, either for an equivalent, or at
fuch a rate as to occafion an inconfiderable lofs,— but not at fuch a
rate as to make the lofs great and apparent; becaufe, the appointment
of an executor being for the benefit o f the orphan, he mart avoid
Ioffes in as great a degree as poflible-;— but with refpedt to an incon-
Jiderable lofs, as in the commerce' of the world it feoften unavoidable,
it is therefore allowed to him to incur it, fince otherwife a door would
be fhut to the bufinefs of purchafe and fale.
A n executor, in giving a bill of fale, muft not infert his power
as an executor in it, but muft give a feparate paper to that effedl, out
o f caution ; for i f the latter alfo were inferted, it might happen that
the witnefs to the fale might fet his name to the bottom of the inftru-
ment without examination, which would implicate a falfe teftimony,
fince with the executorfhip he has no concern. Some, moreover
have afferted that the atteftation o f the witnefs ought to run in this
manner— “ Sold by Zeyd the fon of Omar," and not “ by Zeyd the
“ executor of iuch a perfon :”— but others maintain that this is immaterial,
and that the latter mode may with propriety be adopted, as^
executorfhip is a matter of notoriety.
A n executor Las the power of felling every fpecies o f property
belonging to an adult abfent heir, excepting fuch as is immoveable;_
for as a father is authorifed to fell the moveable property of his adult
abfent fon, but not fuch as is immoveable, his guardian [the executor]
has the fame power. The ground of this is, that the fale of
moveable property is a fpecies of confervation, as articles' of that de-
icription are,liable to decay, and the price is much more eafily pre-
V o L - I V ‘ 4 B ferPv e d
or fell or
purchafe
moveables on
his account.
H e may alfo
fell moveables
on a c count
o f an
abfent adult
he ir. •