Court of Conference,

Raleigh,

June, 1804.

#### Millison vs. Nicholson.

XLLTSON is the administrator of Howell, who was said t® -‘•VJL be a lunatic. Howell, in his lifetime, conveyed the ne-groes in qurstion to his sister, who married Millison after her brother’s death; but before his death, had conveyed the negree» by bill of sale, to Nicholson, in which was a clause of warranty..

It was argued for Nicholson, that the wife of Millison, if sole, could not n-over, though she were r,he administratrix of her brother — 1 Salk. 295. 3 Ho. 2“Q j and that Millison himself could not: because' first, if he recovered as administrator, lie was liable as husband, by means of the warrantry, to the value of the recovery; and therefore, to avoid circuity of action, his action as administrator in contemplation of law, is extinguished. Secondly ; he cannot recover, because the wife being estopped by her cbed, he also having adopted her circumstances by the marriage, became equally estopped, in like manner as tenant by the courtesy is estopped by the act of his wife : Poll. 61; Co, Litt. 3S2. But the court decided that he may recover at law, notwithstanding these objections.