Field v. Wallace's adm'rs

Judge Mills delivered the Opinion of the Court. This is assumpsit against admidistra-tors, with two counts; the first alleging an assump-sit by the intestate, and the second an assumpsit by both the intestate in his lifetime, and the defendants,, his administrators since his death. JYoji assump-sit by intestate, and non assumpsit by him within five years. Verdict for defendant; motion for a new trial; oL vorruled, and judgment. In sucii case, count on one assumpsit by dccedant and another by • administrators, and non assumpst within five years by decedent, and verdict for defendant; there can be no judgment, but repleader awarded. Instruction; record; exceptions. In actions against executors &c. the six months after the death, in which no action can be commenced, shall be excluded. Query, whether this exception ought to be replied. [334] There áre two pleas, to-wit, non-assumpsit by thé intestate, and non-assumpsit by the intestate within five years, and no answer to the assumpsit by the administrators. There was a verdict for the defendant below, which the court refused to set aside, when applied to for a new trial. It is clear, that but part of the declaration is answered. The assumpsit by the administrators is not controverted by any plea; consequently, no judgment ought to have been rendered for the defendant, when only one assumpsit was answered. It is assigned for error, and has been urged in argument, that the court below erred in its instructions given to the jury, upon the effect of a subsequent acknowledgment to take the case out of the statute of limitations. These instructions if given, cannot be noticed. The clerk has copied into the record, a paper, purporting to be instructions given to the jury, with a note at the bottom, that they were given. But these instructions, if such they may be called, are not made part of the hill of exceptions nor is there any complaint that they were given. Whether therefore, the loose paper belongs to this cause, or was only written with intention to be given, we cannot know, and they were improperly copied by the clerk, as they were in no way, by the act of the court beldw, made part of the record.. One other question will be noticed, as it appears on a motion for a new trial, Sind may again occur. The assumpsit of the intestate proved, cOmes within the term of five years before the commencement of the action, provided the term of six months, allowed by statute, after administration granted, before suit could be brought, is taken out of the computation of time. This appears to have been overlooked by the court, and forbids a verdict for defendant. Whether the plaintiff below ought to reply this exception in the statute, which allows the six months, or has a right under the general replication, to exclude it in the computation, we need not determine, [335] as no replication of that kind is presented, and the pléa is to part of the action only. But it is mentioned that future difficulties may be avoided, as it will be the duty of the court below, to award a re-pleader. Mayes, for plaintiff; Crittenden, for defendants. The judgment is reversed with costs, and verdict set aside, and cause remanded with directions for new proceedings not inconsistent with this opinion.