Bell's Adm'r v. Andrews , 34 Ala. 538 ( 1859 )

STONE, J.

It is contended for appellee, that the ju3| ment in this ease must be affirmed, because he had, by his i>lea, put in issue the question whether the plaintiff was the administrator of John A. Bell; and that the bill of exceptions, which sets out all the evidence, does not show that he was such administrator. The argument is, that the court rightly instructed the jury, if they believed the evidence, to find for the defendant, because a link, indispensable to plaintiff's chain of evidence, was wanting. Without mentioning any other, there is one com-píete answer to this argument. The bill of exceptions does not assume to set out the plaintiff’s evidence in detail. No question seems to have been made in the court below on its admissibility. The statement in regard to the plaintiff’s evidence is, “the plaintiff proved his demand as administrator.” This recital is true, if the plaintiff had proved a contract made, or account stated, with him as administrator; or if he proved an indebtedness to John A. Bell, and that he, the plaintiff, was administrator of Bell. It is not true, if the proof only showed an indebtedness to the decedent, and failed to show that plaintiff’ was his legal representative. Under the rule which accords verity to the record, (see Deslonde v. Darrington, and citations, 29 Ala. 92,) this objection must be overruled. See, also, Trowbridge, Dwight & Co. v. Pinckard, 31 Ala. 424.

[2.] The estate of plaintiff’s intestate had been declared insolvent, for more than nine months, and the claim which the defendant sought to set off’ had not been filed in the office of the judge of probate. — Code, § 1847. It is contended for appellant, that the claim was barred, and should not have been received to defeat his recovery. In Murdock v. Rousseau's Adm’r, 32 Ala. 611, we held, that a claim against an insolvent estate, which was not filed within nine months after the declaration of insolvency, was barred as a demand against the estate: ¥e adhere to that opinion, and hold, that the claim offered as a set-off, if the facts be correctly set forth in this record, was not a subsisting demand. — See Puryear v. Puryear, at the present term.

Reversed and remanded.