#### DRURY McDANIEL v. JOHN JOHNS.

Where an executor gave a part of a standing crop, for hauling the remainder to the crib, it was held not to subject him to the penalty imposed for selling a deceased person’s estate otherwise than at public auction.

Action of debt for a penalty, tried before Osborne, J., at the Eall Term, 1860, of Rutherford Superior Court.

The action was brought for the penalty of $200, which, it was alleged, the defendant had incurred by selling tbe goods of his testator at private sale. It was proved, that on entering upon the duties of his office, the defendant found a crop of corn standing in the field, and hired one John Covington to haul it to the crib, and, as a compensation, gave him for his wagon and team two dollars and fifty cents per day, to be paid in corn at 50 cents per bushel, and that the com thus paid, was a part of tlia^tated as standing in the field, and belonging to the estate ot the testator.

*415The Court being of opinion, on this state of facts, that the plaintiff was not entitled to recover, so instructed the jury,’ who found for the defendant. Plaintiff appealed.

No counsel appeared for the plaintiff in this Court.

Logan, for the defendant.

Pearson, C. J.

¥e concur with his Honor in the opinion that this ease does not come within the operation of the statute, which forbids the sale of the property of deceased' persons, except by “ public vendue or auction.”

The transaction was not a sale of any portion of the corn, but only a convenient mode of getting the crop of corn hauled to the crib, by allowing a part to be taken as commissions in payment for the price of hauling. It may be that this was the only mode in which the executor could have procured the work to be done. It does not appear that he had any cash of the estate in hand, and certainly he was not required to advance funds of his own, or to pledge his individual credit. In short, the case does not fall within the meaning of the statute, or the evil which it was intended to guard against.

Per Curiam,

Judgment affirmed.