
    William Ellis, Administrator of Samuel Ellis, deceased, vs. David N. Carlisle, President of the Board of Police of Jones county.
    An actual presentation of a claim against the estate, of a decedent, within the time prescribed by law, is not necessary; if the administrator has knowledge or notice of it, that is sufficient; any evidence, therefore, tending to show such knowledge or notice on the part of the administrator, is admissible.
    C., as president of the board of police of Jones county, sued E.’s administrator, on two notes. C. was offered as a witness to prove that the administrator had notice of the claims sued on within eighteen months after the publication of the grant of letters of administration, and he was objected to as a witness, on the ground that he was a party to the suit; held, that he had no interest in the suit, and was not personally liable for costs; that he was a party as a public officer, in whom a right of action vested by law. And he was therefore a competent witness.
    ERROR, from the circuit court of Jasper county; Hon. A. B. Dawson, judge.
    This was an action of assumpsit, brought to the May ter.m, 1844, of the circuit court of Jasper county, by David N. Car-lisle, president of the board of police of Jones county, and successor in office of William Grisit, against William Ellis, as administrator of Samuel Ellis, deceased, founded on two promissory notes, drawn by Samuel Ellis and G. C. Moffatt, in favor of William Grisit, president of the board of police of Jones county, and his successors in office, the one for $1000, and the other for $100. The defendant filed two pleas; first, that on the 6th day of September, 1841, letters of administration on the estate of Samuel Ellis, deceased, were granted to Jane Ellis andJ. W. Ellis, who, within two months thereafter, published a notice requiring all persons having claims against his estate, to present them within the time prescribed by law; and that the notes sued on were not presented to them, or either of them, within eighteen months after the publication of said notice; and that the said Jane and J. W. Ellis continued as administrator and administratrix, for more than eighteen months after the publication aforesaid. Second, a plea of payment in short, by consent, with which was filed an account, as an offset, for $323. To the first plea the plaintiff replied, that the notes sued on were duly shown and presented to the said Jane and J. W. Ellis, within eighteen months after the said publication, to wit: on the 1st day of March, 1843. Upon this replication issue was joined. Issue was also joined on the second plea. At the April term, 1845, the case was tried, and the jury found a verdict in favor of the plaintiff, for $973 46, and judgment was rendered thereon. The plaintiff then moved to set aside the judgment, and for a new trial, because there was no evidence offered to the jury to prove the set-off, or account filed. His motion was sustained by the court, and a new trial granted. At the April term, 1846, the cause was tried again, and the jury found a verdict for the plaintiff for $1495 17|, upon which judgment was rendered. The defendant then moved for a new trial, on the following grounds: 1. Because the defendant was surprised by the evidence which the court permitted to go to the jury to sustain the issue on the part of the plaintiff. 2. Because the evidence which the court permitted to go to the jury was irrelevant. 3. Because the court permitted an incompetent witness to testify for the plaintiff. 4. Because the verdict does not find the issue joined, either way. This motion was overruled by the court, and the defendant filed a bill of exceptions, setting out the evidence, from which it appears that the plaintiff read to the jury the notes sued on, and then proved by L. Wilborne, that a short time after the death of Samuel Ellis, he held a conversation with John W. Ellis, the former administrator of Samuel Ellis, and that he, said John W. Ellis, acknowledged that Aaron Wilborne, commissioner of the three per cent, fund of Jones county, had presented a note to his mother, Jane Ellis, the administratrix of Samuel Ellis, which note belonged to the three per cent, fund ; but he could not say that either of the notes sued on was the one referred to by J. W. Ellis. He knew that his father, Aaron Wilborne, as commissioner of the three per cent, fund had the notes read to the jury, in his possession, for shortly after the death of Samuel Ellis, he aided his father in computing the interest due on them. He could not say that the notes sued^on were presented to the administrator of Ellis within eighteen months after the publication of the grant of letters of administration.
    Stacy Collins was then introduced, and on his voir dire, stated that he was president of the board of police of Jones county, and the successor in office of the plaintiff His testimony was therefore objected to by the defendants, but the objection was overruled, and he was permitted to testify. He proved, in substance, that Jane and J. W. Ellis, shortly after the death of Samuel Ellis, delivered to the board of police of Jones county, 'in his presence, five or six thousand dollars, in notes.belonging to the thíee per cent. fund. That he did not know that the notes sued on were among them; but he thought that some notes of Samuel Ellis, deceased, were. He could not say whether that was before or after the grant of administration. .
    S. B. Ellis testified that he visited the house of his late brother, Samuel Ellis, shortly after his death, and before any administration had been granted on his estate. And witness there saw among the papers of his brother two notes; one,.he believed, for $1000, and the other for $100; both of which were signed by his brother, and both belonged to the three per cent. fund. Witness could not identify the notes sued on as the same he saw among his brother’s papers. He said he never heard John W. Ellis, or Jane Ellis, acknowledge that the notes sued on were presented to them, or that they had notice of the existence of such notes. He further stated that he never had any conversation with the administrators about the business of his brother’s estate.
    J. G. Sims proved substantially the same facts proved by S. B. Ellis. And he testified, in addition, that John W. Ellis, administrator of Samuel Ellis, a short time before the eighteen months after the publication of the grant of the letters of administration, &c. had expired, that no such notes as those sued on had been presented to the administrators; and in a short time they would be barred by the statute. To all of which evidence, so given by the several witnesses, the defendants then and there objected, because it was all irrelevant; but the court overruled this objection, and he excepted. Upon the motion of the plaintiff the court instructed the jury, “ That if they believed from the evidence that the administrators had notice of the existence of the notes within the eighteen months after the grant of letters of administration, they must find for the plaintiff.” And at the request of the defendant the court also instructed the jury “ That unless they believed from the evidence that the administrators had such notice they must find for the defendant.”
    The defendants brought the case to this. court by writ of error.
    
      J. Heyfron, for plaintiff in error,
    contended that none of the evidence tended in the slightest degree to prove that either of the notes sued on had been presented to the administrators, or that they had any knowledge that any such notes existed within eighteen months after the publication of the grant of letters of administration. But, admitting the administrators had such knowledge, the evidence was wholly irrelevant to the issue the jury were sworn to try, was well calculated to mislead the jury, and. ought to have been excluded.
    
      George Calhoon, for defendant in error.
    The plaintiff in error, as appears by the bill of exception, raises four points.
    1. That he was surprised by the evidence which the court permitted to go to the jury.
    
      2. That the.evidence which the court permitted to go to the jury, was irrelevant. These two merit no reply.
    3. Because the court permitted an incompetent witness to testify for the plaintiff. The witness Collins was successor in office to the plaintiff. If he has any personal interest in the suit I cannot perceive it. If the money ever comes to his hands he will hold it merely as trustee. The rule is well settled that mere agents and trustees are competent. Even an executor, who is not devisee, is competent to establish a will.
    4. The verdict does not find the issue joined, either way. The verdict was for the plaintiff, $1495. If this did not settle the issue, I confess I know not what would.
    The question before the jury was, whether the administrators had notice of the demand within the eighteen months; and it is clear from the evidence that they had.
   Mr. Justice Clayton

delivered the opinion of the court.

The material question in this record, in our view, is, whether the notes on which this suit was brought, were presented to the administrators of Ellis within the time prescribed by law. If they had knowledge,aor notice, of the claims, that is equivalent to presentation. Miller v. Trustees of Jefferson College, 5 S. & M. 662; Helm v. Smith, 2 Ib. 403.

The evidence excepted to was not objectionable, because it tended to prove that the administrators knew of the existence of these claims, although there was ho actual presentation.

The objection to Carlisle as a witness was not valid. He had no interest in the suit, and was not personally liable for costs. He was a party as a public officer, in whom a right of action vested by law.

The jury found in favor of the plaintiff, and from the testimony, we cannot say they were not justified in so finding.

Judgment affirmed.  