1852. MARTIN V. BARLOW. Gregg then proved, by a witness introduced by him, May Term, that a short time after the sale the sheriff called on the witness and requested him to draw a sheriff's deed for the land to Wygant, but upon examining the venditioni exponas and the notices of sale, it was found that there was a variance between the description of the land in the writ and in the notices, and no deed was ever made either to Wygant or to Gregg. This evidence was objected to but it was admitted. This being all the evidence, the motion of the plaintiff was sustained, and it was ordered that the judgment be entered satisfied. We e are of opinion that the facts disclosed do not show a satisfaction of the judgment. The mistake made in selling upon the supposition that incumbrances existed which did not exist, might afford grounds for setting aside the sale, but the purchaser could not be compelled to take the property at a price consisting of the amount of his bid and the amount of such of the incumbrances as had been removed. The sheriff's return was only conclusive against himself, and would not preclude a bidder from showing that he had received no deed. Per Curiam.-The judgment is reversed with costs. J. S. Harvey, J. Morrison, and S. Major, for the plaintiff. MARTIN V. BARLOW, Administrator. In an action of assumpsit by an administrator for a quantity of charcoal delivered and money lent by the intestate to the defendant, the plaintiff proved the first item clearly, and, in order to prove the latter, introduced a witness who testified that he heard the defendant tell the intestate, at, &c., that if the latter would advance the money and purchase iron for a wagon, he would put the iron on the wagon, sell the wagon, and pay May Term, 1852. MARTIN V. BARLOW. Saturday, May 29. the intestate what he owed him; and that the intestate purchased and paid for the iron and delivered it to the defendant. The witness was the holder of a claim against the intestate's estate, but it did not appear that the estate was insolvent. The jury found for the plaintiff the said items of indebtedness, with interest till the giving of the verdict. Held, that the jury were authorized to infer that the intestate bought iron enough to iron the wagon. Held, also, that the jury were authorized to allow interest on both items to the time of giving their verdict. Held, also, that the witness was competent. ERROR to the Decatur Probate Court. SMITH, J.-This was an action of assumpsit commenced by Barlow, administrator of Isaac Short, against the plaintiff in error. The declaration alleges that Martin and one Montgomery, as partners, were indebted to Short, in his life-time, 99 dollars and 35 cents, for charcoal sold and delivered, and 13 dollars for money lent and advanced. Martin appeared and pleaded separately four pleas, one of which was non assumpsit. The cause was sub mitted to a jury, and the plaintiff obtained a judgment for 148 dollars and 50 cents damages. The item of 99 dollars and 35 cents for charcoal was clearly proved. To sustain the item for money lent and advanced, the plaintiff introduced a witness who testified that he heard Montgomery tell Short, at a time when Martin and Montgomery were keeping a blacksmith's shop as partners, that if Short would advance the money and purchase iron for a wagon, he, Montgomery, would put the iron on a wagon, sell the wagon, and pay Short what he owed him; and that Short did purchase the iron, pay for it, and deliver it to Montgomery. We think this evidence was sufficient to justify the jury in finding that there was a sufficient quantity of iron bought to iron a wagon, and, therefore, to find the cost or amount of money advanced for that purpose, within the amount charged in the declaration. The amounts due for these two items, namely, the coal and the money advanced for iron, with interest thereon up to the time of the judgment, would amount to the damages found by the jury, and from the time those sums had been due, and from the fact that Short had been required to advance money for iron, in order to obtain payment of the debt before due to him, we think the jury were justified in giving interest for a vexatious delay of payment under the statute. One Kercheval, a witness for the plaintiff, was objected to on the ground that he was incompetent from interest. He admitted that he had had an account or claim against Short's estate, but said he had balanced his books and did not expect to obtain anything, because he was unable to prove his account. As there was no evidence of insolvency, it does not appear that the witness had any interest in increasing the assets, and the objection made to him is untenable. Several instructions requested by the defendant were refused on the ground that they were irrelevant. We do not think that the Court erred in refusing these instructions, or that those that were given are objectionable. Per Curiam.-The judgment is affirmed, with 3 per cent. damages and costs. A. Davison, for the plaintiff. May Term, 1852. THOMAS V. REISTER. THOMAS V. REISTER, Administrator. The administrator of the legal holder of a note, has the right to assign it. In a suit brought upon a note by the assignee of an administrator, a plea alleging that the right of the administrator to make the assignment had ceased before he made it, is a special plea of non-assignment, and must, under the R. S. 1843, be verified by oath. When the general issue and a special plea are filed to the action, and the matter alleged in the special plea is admissible under the general issue, the defendant cannot complain that a demurrer to the special plea was improperly sustained. While the rule of practice in the Supreme Court was, that objections to evidence should be pointed out at the trial, or otherwise the overruling of them could not be assigned for error, objections were made to evidence VOL. III.-47 May Term, 1852. THOMAS V. REISTER. Saturday, without stating the grounds. Held, that the objections could not be noticed on error. ERROR to the Ohio Circuit Court. PERKINS, J.-Augustus Igoe brought an action of debt against James Thomas, declaring that said Thomas, on the 10th day of June, 1835, at Baltimore, &c., to-wit, at, &c., made his promissory note to Nancy and Ruth Sampson, promising to pay them 200 dollars, one day after date; that, afterwards, on, &c., said Nancy died, leaving said Ruth surviving, and that, subsequently to the death of said Nancy, on, &c., at the county of Baltimore, state of Maryland, said Ruth departed this life; that, afterwards, on the 30th day of September, 1839, Jeremiah Ducker was, by the Orphans' Court in said county of Baltimore, appointed administrator on said Ruth's estate; that said administrator afterwards, on the 27th of May, 1847, indorsed said note to the plaintiff, &c., and that it was not paid, &c. Igoe died pending the suit, and James M. Reister, his administrator, became a party to and prosecuted it. The defendant, Thomas, appeared and pleaded: 1. The general issue; 2. That Ruth Sampson did not survive Nancy; and 3. That Ducker was not appointed administrator upon Ruth's estate. He also pleaded three additional pleas, each, in substance, alleging that Ducker had ceased to be administrator at the time of the assignment of the note in suit. These pleas last mentioned were not sworn to and were rejected on motion. Issues of fact were formed upon the other pleas, were submitted to the Court for trial, and a judgment was rendered for the plaintiff. The evidence is upon the record. The plaintiff introduced a note and assignment corresponding with those alleged in the declaration. He proved that Ruth was the survivor in life of Nancy Sampson, and he gave in evidence the following certificates: The state of Maryland, Baltimore county, to-wit: The subscriber, register of wills for Baltimore county, doth hereby certify that it appears by the records in his office, that letters of administration of all the goods, chattels, 1852. THOMAS credits, and personal estate of Ruth Sampson, deceased, May Term, were, on the 30th day of September, in the year of our Lord one thousand eight hundred and thirty-nine, granted and committed unto Jeremiah Ducker, who was then and there appointed administrator of the said deceased. "In testimony whereof I hereunto subscribe my name. and affix the seal of my office, this 6th day of July, in the year of our Lord eighteen hundred and forty-seven. [Seal]. Test: D. M. Perine, register of wills for Baltimore county. “Maryland, sct.: I, Edward D. Kemp, presiding justice of the Orphans' Court for Baltimore county, in the state aforesaid, do certify that the foregoing attestation of Daniel M. Perine, register of wills for said county, is in due form and by the proper officer. Given under my hand, at the city of Baltimore, this 6th day of July, in the year of our Lord one thousand eight hundred and forty-seven. E. D. Kemp." To the introduction of all of which evidence, being all that was offered on the trial, the defendant objected generally, but the Court overruled the objection. The plaintiff in error contends: 1. That the admininistrator did not possess the power, by virtue of his office, to assign the note in question. He is wrong in this. On the death of the holder of the legal title to a note or bill of exchange, the right of transfer vests in his executor or administrator. Chitty on Bills, 225. 2. He insists that the Court erred in sustaining the motion to set aside the pleas alleging the cessation of the power, if it once existed, of the administrator to assign the note. In this we think he is mistaken. Those pleas were special pleas of non-assignment and should h been verified by oath. They alleged that the right th administrator to assign had ceased before he mathe supposed assignment. If the allegation was truePU legal assignment had been made. The case resembles Allen v. Thaxter, 1 Blackf. 399. That was covenant o a deed averred to have been executed by an attorney fact. Plea, that the attorney was not authorized to exe V. REISTER. |