May Term, "such further or additional bond as the Court may require." 1854. R. S. 1831, pp. 156, 161. SALYER V. It is insisted that the first bond was given without THE STATE. reference to the real estate. That position is not strictly correct. The law makes it the administrator's duty, when he discovers the insufficiency of the personal assets to discharge the intestate's debts, to take an inventory of the real property and cause it to be appraised. No doubt that duty is within the condition of the original bond. Indeed it requires fidelity in the performance of every duty and trust committed to the administrator. It would therefore be difficult to find a reason why the condition of the first bond should not embrace the distribution of assets derived from the sale of land. The words "such other and additional bond as the Court may require," as used in the statute, evidently conferred on the Court a discretionary power. Where, in the opinion of the Court, the administration bond was sufficient to secure a proper application of all the assets belonging to the estate, including those to be produced by the sale of real property, further security would not be required. The condition of the bond sued on in this case, was clearly intended to secure to all inte rested in the estate of Riggs the performance of every duty enjoined upon the administrator. Wade v. Graham, 4 Ohio 126, is directly in point. In that case it was decided under a statute similar to the one above cited, that the sureties on an administration bond are liable to the amount of the penalty, at least, for proceeds received by the administrator from the sale of lands under an order of the Court. It seems to us, that under the statute of 1831, no suit could be maintained upon the additional bond until the penalty of the original bond was exhausted. The statute of 1843, and also the law now in force, relative to the sale of real estate by an administrator, differ in phraseology from the act under consideration, and may admit of a different construction. But we are not called upon to give an opinion as to the effect of administration bonds given under these later statutes. 1854. HENLY V. The decision upon the issue submitted, it is alleged, May Term, J. A. Fay and J. Perry, for the plaintiff. HENLY V. Streeter. Assumpsit on a note for the payment, on, &c., of 60 dollars, in a horse worth from 40 to 55 dollars, and in cash notes on different individuals for the balance. Held, that a horse worth less than 40 dollars, or notes not indorsed, were not a legal tender upon the contract. A trial upon an immaterial issue can not be alleged for error by the party who tendered the issue. APPEAL from the Delaware Circuit Court. DAVISON, J.-Streeter sued Henly in assumpsit on a note for the payment, on the 15th of April, 1846, of 60 dollars, in a horse worth from 40 to 55 dollars, and in cash notes on different individuals for the balance. The note was given by Henly to one Jobs, and by him, on the 18th of April, 1846, assigned to Streeter. There were two pleas. The first is, that Henly, on the 15th of April, 1846, tendered to Jobs, the payee, in discharge of the note sued on, a horse of the value of 40 dollars, and cash notes on different individuals for the balance, &c., and that the tender was refused, &c. Replication in denial of this plea. The second plea alleges, that the consideration of the note in suit was an agreement to convey to Henly a certain tract of land upon the payment of the note, and then avers that the said note was assigned without consideration, &c. To this plea Streeter replied, that for the 1854. May Term, assignment there was a valid consideration, &c. Trial by the Court. Motion for a new trial and in arrest overruled. Judgment for Streeter. HENLY V. STREETER. Relative to the tender, the facts proved were these: On the day fixed by the note for the delivery of the property, one Pugh, Henly's agent, offered the payee, in discharge of the note, a mare at 40 dollars, and also promissory notes on different individuals to the amount of 20 dollars. Pugh had the notes in his pocket-book, which he took out of his pocket; but he did not show the notes to the payee, nor did he give him a description of them. The notes were not indorsed. When the property was offered, the payee said he would take it; but, upon looking at the mare, stated that he would not receive her until she was appraised; that if she was appraised at 40 dollars he would take her. Thereupon the payee and Pugh mutually agreed on two persons to appraise the mare. By the appraisers thus chosen she was valued at 37 dollars and 50 cents. The payee then declined taking any of the property. Upon the inquiry whether the mare was really worth 40 dollars, the testimony was conflicting; but the preponderance seems to be that she was not worth that amount. The first plea, in our opinion, was not sustained. The effect of a tender correctly made, is to vest the creditor with the legal title to the property tendered. Without indorsement, the title to the notes offered could not be transferred. The notes were not indorsed, and therefore, in the consideration of this case, cannot be regarded as the subject of a legal tender. Nor does the evidence set out in the record result in proof that the mare was of value sufficient to meet the requirements of the note sued on. But the appellant contends that the issue submitted on the second plea was immaterial. If that be so, still he is bound by the judgment. The second plea was clearly defective, and constituted no defence to the action. As he made the first fault in pleading, the error is one which he can not properly set up. Per Curiam.-The judgment is affirmed, with 5 per May Term, cent. damages and costs. W. March, for the appellant. T. J. Sample and D. Kilgore, for the appellee. 1854. CONKLIN V. WILSON. CONKLIN V. WILSON and Another, Administrators. A. indorsed an accommodation bill drawn by B. for the purpose of being discounted at a bank. The amount of the bill was left blank, but the amount to be drawn upon it was not to exceed 300 dollars. The proceeds were to be used by B. in the purchase of cattle. The bank having refused to discount the bill, B. sold it to C., first stating to C. that it was an accommodation bill, and was to have been discounted in bank for 300 dollars. C. filled the blank with 400 dollars. B. realized from the sale of the bill 387 dollars, out of which he applied 325 dollars to the purchase of the cattle in contemplation when A. indorsed the bill. A., when he learned that the bill had been sold to C. and filled up as aforesaid, stated that in all probability he would have to meet it; and B. thereupon transferred a note to A. for 200 dollars, but the note was without consideration and of no value. The bill was protested for non-payment, and notice given, &c. In a suit by C. against the administrators of A., upon the indorsement, held, that C. was not a bona fide holder, and could not maintain the suit. ERROR to the Wayne Circuit Court. DAVISON, J.-Conklin sued Wilson in assumpsit on a bill of exchange for 400 dollars. Since Wilson's death the suit has proceeded in the name of his administrators. The bill was drawn by one John Kenley, accepted by Seth Kenley, and indorsed by Wilson. Plea, non assumpsit, verified by oath. The Court tried the cause and found for the defendants. Motion for a new trial overruled, and judgment against the plaintiff. The bill in question was indorsed by Wilson for the accommodation of John Kenley, the drawer, and was to be discounted at the Richmond branch bank. No amount was inserted in the bill; but it was understood between Wilson and Kenley that the amount drawn would be 300 dollars, and when drawn was to be invested in cattle, VOL. V.-14 Monday, May Term, 1854. CONKLIN V. WILSON. which Kenley at that time desired to purchase. The bank refused to discount the bill. It was then sold to the plaintiff. Prior to this sale Kenley told the plaintiff that it was an accommodation bill and was to be discounted in bank for 300 dollars. With a knowledge of all these facts the plaintiff purchased it and filled the blank with 400 dollars. By the sale Kenley realized 387 dollars, out of which 325 dollars were applied to the purchase of the same cattle in view at the time of the indorsement. Wilson, when informed of the sale and filling up of the bill, stated that in all probability he would have to meet it. Thereupon Kenley transferred to him (Wilson) a note for 200 dollars. This note was shown to be without consideration and of no value. The bill was protested for non-payment, and notice of protest duly given, &c. In the absence of rebutting proofs, the possessor of a bill will be deemed a bona fide holder for value. This the law presumes. But how stands the case upon the record? The bill sued on was indorsed upon the condition that it should be discounted at the Richmond branch bank, and for an amount not to exceed 300 dollars. The indorser had a perfect right to annex such a condition to his engagement. When the bill was rejected by the bank, the object of it failed, and it ought, in good faith, to have been returned to the parties who gave it. Instead of that, however, Kenley sold the bill to the plaintiff. No doubt that sale was made in violation of the agreement upon which it was indorsed. Still, if the plaintiff had purchased the bill without notice of that agreement, his right to recover in this suit could not be controverted. But on that point the evidence is conclusive. The plaintiff, when he took the bill, was fully notified that it was accommodation paper, and also of the arrangement on which the indorsement had been made. With that notice he received the bill and filled up the blank with 400 dollars. This was a direct fraud upon Wilson. It follows that the plaintiff does not hold the bill in good faith. Having paid for it was not sufficient. He was not entitled to recover, unless he had taken it bona fide, and for a valuable consideration. Both were neces |