
    Alford's Adm'rs v. Cochrane.
    Where one of the items of an account against an estate was barred by the statute of limitations, and the administrator demurred generally to the petition: Reid, That the demurrer should have been sustained as to the item which appeared to be barred. But it would not- therefore follow that the case should be remanded for another trial.
    The statute (Hart. Dig., art. 1158) does not require the affidavit in authentication of a claim against an estate to be signed by the affiant.
    Where the plaintiff sued for the hire of a negro, it was held that the defendant might plead in reconvention that the negro belonged to himself, and pray judgment for the negro or her value, and for the value of her services while she was in possession of the plaintiff.
    Where the plaintiff sues for the hire of a slave, quere whether the defendant can introduce evidence to prove the title of the slave to be in himself, by way of rebutting the evidence of the plaintiff.
    Whore the court has erroneously sustained a demurrer to certain facts presented in the form of a plea, it is not incumbent on the defendant, in order to save the point, to offer the same facts in evidence, although they might have been receivable as rebutting evidence.
    Appeal from Austin. The appellee brought suit on the 16th clay of October, 1850, to recover of the appellants an account for the. hire of a negro woman, amounting to the sum of one hundred and forty-two dollars and forty-two cents, alleged to have been due from the intestate in his lifetime. The account was appended to the petition, and cousisted of the following items: $11.40, due on the 1st day of January, 1848; $77, due on the 1st day of January, 1849; and $54, due on the 24th day of September, 1840. Aunexed to tlie account was the certificate of a justice of the peace of the county, that the plaintiff had made oatii before him “ that the above account against John Alford, deceased, is just and true; and that all legal offsets, payments, and credits known to him have been allowed.”
    The defendants demurred to the petition, and pleaded in reconvention that their intestate was the owner of the negro woman Flora, whose hire was the subject of the suit, and that both the possession and hire of the negro belonged to their intestate ; that the plaintiff, on the lltli day of September, 1849, unlawfully obtained and still retained possession of the negro; that she was of the value of eight hundred dollars, and her hire, since she had been so in possession of the plaintiff, was of the value of two hundred dollars; and they prayed judgment for the negro, or her value and hire.
    Tire plaintiff demurred to the plea. The court overruled the demurrer to the petition, and sustained the demurrer to the plea. There was a verdict and judgment for the plaintiff'.
    
      N. II. Hunger, for appellants.
    I. A part of the claim was barred by limitation; it should have been ruled out on the demurrer. (Dig., att. 2377.) This was not a claim for goods, wares, &c., and entitled to an additional year. (Arts. 2379-2381 — all relating to merchants’ accounts.) Duty of court to strike out items over two years. (Art. 2383.)
    II. The claim was not verified by affidavit. There was no signature to what purported or was intended for an affidavit. No action for perjury could be sustained on the affidavit against Cochrane, and the law contemplates that all legal affidavits shall be such that a prosecution for perjury could be sustained against the party if he swore falsely.
    III. There was error in sustaining exception to plea of defendants. Evans v. Gray (12 Mart. R., 481) is the leading case in Louisiana on this subject. Seo also 2 N. S., 81; Montgomery v. Russell, 7 Id., 290; Kelly v. Caldwell, 4 La. R., 40; Id., 334; 11 La. R., 252; G N. S., 671; S N. S., 145 ; 8 N. S., 70G; 8 La. R., 257; 10 La. R., 183 ; 2 La. R., 137; 12 La. R., 506; Thomas v. Ilill, Adm’r, 3 Tex. R.
    IV. Holland, for appellee.
    I. The petition is not objectionable on account of insufficiency of the affidavit to the account sued on. <Bouv. Law. Die., tit. “Affidavit.”) It will be perceived that the statute contemplates that there shall be a distinction between a simple affidavit and talcing and subscribing an oath. (Hart. Dig., arts. 1128, 1129, and 1158.) Why did the administrators allow any part of the account if the affidavit was so defective ?
    II. The court did not err in sustaining exceptions to the second plea of defendants. The claim of defendants for title and possession of a slave is not similar in its nature to the money demand sued on by plaintiff: (Dig., art. GÜ9.) Nor is it necessarily connected with plaintiff’s claim. (Code of Prac., art. 375.) If the defendants had sued the plaintiff for title and possession of the slave, could the plaintiff have pleaded in set-off or reconventiou a money demand for hire? If not, why should these defendants be permitted to set up a possessory action against a money demand? “Demands in reconventiou should have the same certainty as a petition.”. (5 N. S., 18.) This iilea is bad, because it does not state with certainty the facts on which defendants’ right to recover is based.
   Wheeler, J.

The item of eleven dollar’s and forty cents embraced in the plaintiff’s account appears to have been barred by the statute of limitations; and as to that, the demurrer to the petition ought to have been sustained. There was, however, remaining an amount within the jurisdiction of the court, and, consequently, sufficient to enable the plaintiff to maintain his action.

I't is objected that the affidavit accompanying the account presented to (lie administrator for Lis approval was not signed by the affiant. It was a writing in the terms of the statute, and attested' and signed by a justice of the peace "of the proper county, and this was sufficient. The statute does not require that it be signed by the affiant. (Hart. Dig., art. 1158.)

There was no error in overruling the demurrer to the petition. But there manifestly was error in sustaining'the demurrer to the plea, which asserted a right of property and possession of the negro in the defendants. For the purpose of considering the legal sufficiency of the plea upon the demurrer, it was to be taken as true; and if true in fact, that it constituted a good dofensodu law cannot admit of a question. It is no answer to this objection to the judgment of the court that at the trial the defendants offered no evidence of title in their intestate. We cannot assume that they would not have adduced satisfactory evidence of the truth of their plea if they had not been virtually precluded from doing so by the ruling of the court upon the demurrer.

Because, therefore, the court erred in its judgment sustaining exceptions to the defendants’ xffeas, the judgment must be reversed, and cause remanded for further proceedings.

Judgment reversed.  