
    Trott vs. West, Moss & Co.
    Administrator and Executor. Construction of 1789, c 23, § 4, 2d proviso. If an administrator pay part of a debt of the intestate, and “promise to pay tile balance soon,” that does not amount to a special request to delay bringing-suit so as to stop the operation of the statute of limitations during the time of the delay.
    Bill oj? Exceptions. Defective statement of evidence. If it does not appear in the bill of exceptions that all the evidence submitted to the jury is stated therein, the court of errors will presume that there was evidence to justify the verdict of the jury. This presumption will not be made if the bill state that it contains all the material evidence.
    Pleading-. Immaterial issue. If an immaterial issue be submitted to a jury» and they render a verdict thereupon, final judgment cannot be pronounced upon the finding; but only a judgment of repleader.
    Practice. New trial. If the iacts submitted to a jury do not sustain the verdict, it will be set aside and a new trial granted; and the act of 1801, c 6, $ 59, which says that not more than two new trials shall be granted to the same party, does not prevent the court from granting new trials, — for error in the charge of the court to the jury, for error in the admission or rejection of testimony, for misconduct of the jury, and the like.
    Same. Certiorari on diminution. Certiorari awarded on diminution suggested after judgment entered in the supreme court, the suggestion being supported by a copy of the record from the court below showing the diminution.
    Henry Wiley executed his bill single to the defendants in error on the 14th of April, Í831, for twelve hundred and fifty-three dollars and seventeen cents, payable four months after date, in the branch of the Bank of the United States at Nashville. He died soon afterwards, and administration of his estate was granted to the plaintiff in error by the county court of Warren, on the 4th of July, 1831. On the 6th of May, 1833, the plaintiff in error paid John P. Erwin, who had the bill in his possession, as agent or trustee, three hundred and eighty one dollars and fifty cents, which sum was indorsed as a credit, at that date, upon the bill; and the plaintiff in error then promised Erwin “to pay the balance due soon.” On the 20th of December, 1833, the defendants in error sued the plaintiff in error in the county court of Warren, in debt upon this bill. The declaration was in the usual form. The defendant pleaded, 1 — That the plaintiffs were residents in the State of Tennessee at the time of Wiley’s death, and they did not demand, and bring suit for the recovery of their debt within two years next Hfore the issuance of the original writ in this cause from the time of the defendant’s qualifying as administrator. 2 — That they did not demand and bring suit for the recovery of the debt within three years, &c. 3 — Fully administered. 4 — Payment by the administrator.
    The plaintiffs replied to the first plea, that they within two years after the qualification of the defendant as administrator, to wit, on the 6th day of May, 1S33, demanded payment of him, and he then paid the sum of three hundred and eighty one dollars and fifty cents thereof, and promised the plaintiffs the balance of their debt in a short time, and requested them not to bring suit against him for the recovery of the balance: and therefore they say they did make demand of their debt within two years after the defendant’s qualification as administrator; and that they did at the defendant’s special request delay bringing suit against him for the yecovery of their debt for a short time, to wit, from the 6th of May, to the 20th of December, 1833, and this, &c. To the second plea they replied, that they did demand their debt and sue for it within three years, &c. To' the third, that the defendant had not fully administered in the usual form. And to the fourth, that the defendant had not paid, &c. A rejoinder was filed to the first replication and issue was thereupon joined. The other replications concluded to the county, and similiters were filed to them. The cause was tried in the county court at July term, 1834, and the plaintiffs recovered a verdict and had judgment. The defendant appealed to the circuit court of Warren. There at May term,, 18116, it was again tried, and the jury found the verdict of the jury in the county to be correct, and the plaintiffs had judgment of their debt and twelve and a half per cent, per annum according to the act of 1794, c 1, § .64. The circuit court set this verdict aside, and granted a new trial. At September term, the defendant was allowed to file two additional pleas. 1 — That the defendant was appointed and qualified as administrator of Henry Wiley on the 4th of July, 1831, by the county court of Warren, where Wiley resided at the time of his death; and that the plaintiffs WÍm resided within the state failed to demand and bring suj,t for tlieir debt for more than two years after their right of action accrued, and this, &c. 2 — That the plaintiffs being residents within this state did not make demand and bring suit for their debt within two years, the time limited by the act of 1789, c 23, § 4, and this, &c. The plaintiffs filed one replication to both pleas — That their debt did not become due until the 17th of August, 1831; that within two years from that time, to wit, on the 5th of May, 1833, they demanded payment of their debt from the defendant, when he paid the sum of three hundred and eighty-one dollars and fifty cents, part thereof, and specially requested them to delay bringing suit for the balance for a short time; wherefore they say that within two years from the time their debts became due, they did demand payment thereof, and thereupon, at the special request of the defendant, they did delay to bring suit against him for the balance for a short tim, to wit, from the 6th of May to the 20th of December, 1833, and this, &c. The defendant rejoined, that he did not specially request the plaintiffs to delay bringing their suit for a short time, nor. did he request them to delay from the 6th of May to the 20th of December, 1833, and of this, &c. The plaintiff filed a similiter. The cause was then again submitted to a jury, who found the same verdict as the former jury had done, and the court gave judgment against the defendant for $ 1,363 50 cents debt and damages.
    In charging the jury, his Honor Judge CaRuthehs, said “that if they should find that if the plaintiff delayed to sue as stated in the replication to the defendant’s plea of the statute of limitations, at his request, they would find for the plaintiff; that a promise on the 6th of May, when a part was paid to pay the balance soon, is equivalent to a promise to wait a short time; and if in consequence of that promise, they did wait a short time, to wit, from thence till December, when suit was brought, the issue is for the plaintiffs.” For supposed error in this charge, the defendant appealed to the supreme court, by whom the judgment was reversed and remanded at December term, 1836, as reported in 9 Yerger, 433.
    In the circuit court, at May term, 1837, the cause was again submitted to a jury upon the same evidence as on the former trials; and the court instructed the jury in conformity with the opinion of the supreme court as reported in 9 Yer-ger. They found a verdict for the plaintiffs. The defendant moved for a new trial, which being refused, he filed a bill of exceptions which sets out the evidence, and concludes with the words — “this was all the material evidence in the cause,” and appealed in error. These words standing alone in a separate sentence at the end of the bill of exceptions, were omitted by the clerk in the record sent up to December term, 1837, of the supreme court; and the cause was submitted to the court upon the record thus defective, and after argument by Meigs, for the plaintiff in error, and James Campbell, for the defendants in error, the court affirmed the judgment, and assigned their reasons for the affirmance in the following
    Opinion delivered by Green, J.
    In this case, the trial was had at the May term, 1836, of Warren circuit court, and a verdict was had for the defendants in error, who were plaintiffs below, which was set aside by the court and a new trial awarded. At the succeeding term of the court, the cause was again tried, and the plaintiff obtained a verdict, which the court refused to set aside, but gave judgment thereon, from which judgment an appeal was prosecuted to this court. At the last term, this court reversed the judgment of the circuit court, for misdirection of the jury as to the law of the case, and remanded the cause for another trial. At the last May term of said circuit court, the cause was again tried and a verdict was rendered for the plaintiff, which the court refused to set aside, and this appeal is prosecuted.
    The counsel for the defendants in error insist, that as there has already been two new trials in the cause, the court is forbidden by the act of 1801, c 6, § 59, to grant another. The act says, “That not more than two new trials shall be granted to the same party.” This means, that where the facts of the case have been fairly left to the jury upon a proper charge of the court, and they have twice found a verdict for the same party, each of which having been set aside by the court; if the same party obtain another verdict in like manner, it shall not be disturbed. But this act did not intend to prevent the court’s granting new trials, for error in the charge of the court to the jury, for error in the admission or rejection of testimony, for misconduct of the jury, and the like. This, we should consider the proper construction of the act, if we were now for the first time called upon to expound it; and such having been the uniform practice of the court since its passage, we are the better satisfied with this view of it. Taking the interpretation of the act here given to be the true one, it will be seen that its provisions are not in the way of this court granting the new trial now asked for. There have been but two trials heretofore, granted to the same party in this cause, and one of them having been awarded by this court, for the misdirection of the jury, by the circuit court, we would be at liberty to grant a new trial again in the cause.
    2. But defendants in error insist, that there is no evidence in this record, that all the proof is set out in the bill of exceptions, and consequently we are to presume that there was evidence to justify the verdict. The court concurs with the counsel in this view of the case. There is certainly nothing in the peculiar nature of the question in issue, and the proof by which it must have been supported, to indicate satisfactorily that all the evidence is set out in the record. Nor is there any expression used evincing that all the proof was contained in the bill of exceptions. The rule therefore is, as contended for by defendant’s counsel, that the court, in such case, will presume there was testimony to warrant the verdict.
    Let the judgment be affirmed.
    After this opinion had been delivered, and the judgment of affirmance entered, the counsel for the plaintiff' in error procured a copy of the record from the clerk of the circuit court, containing the words — “this was all the material evidence in the cause” — and thereupon suggested a diminution and moved the court for a certiorari to bring up a more complete record, which was granted. On the return of the cer-tiorari, at this term, the case was argued by
    December 5.
    December 6.
    Meigs, for the plaintiff in error.
    James Campbell, for the defendants in error.
    He cited Gillespie vs. Davis and Wife, 5 Yer. Rep. 319, and Thompson, vs. French, 10 Yer. Rep. 457.
   Turley, J.,

delivered the opinion of the court.

This case was before the court at the December term, 1836, when it was held that a payment of part of a debt* and a promise to discharge the balance soon, was not a sufficient request to delay suit, to prevent the operation of thé statute of limitations of two years, passed for the protection of the estates of deceased persons in the hands of executors and administrators.

Then the judge of the court below had given the jury erroneous instructions upon this point, and the judgment was reversed, and the case remanded for a new trial. As it is now presented, the charge of the circuit judge is correct, but the facts are the same, and we are now called upon to say, whether they are sufficient to support the verdict and judgment.

We are of opinion that they are not. The only proof is that of John P. Erwin, which shows that upon a demand made, the administrator paid a part of the debt and promised to pay the balance due soon. This, as has been seen, the court has heretofore determined will not stop the operation of the statute of limitations; if it will not do so, then there is no evidence whatever upon which the jury could, under the charge of the court, have legally returned the verdict, upon which the judgment was given, and it ought to have been set aside, and a new trial granted.

But it is said, that the bill of exceptions does not show that there was no other testimony, and that the court must therefore infer that there was other and sufficient evidence to warrant the verdict.

The bill of exceptions shows that this was all the material testimony in the cause, which is equivalent to saying — “there was no other,” or — “this was all the testimony in the cause;” for if the testimony be not material, it is illegal and ought not to have been received, or if received, ought to have been withdrawn from the jury; and as to the question of materiality or immateriality, the court below was the proper judge, and its judgment is conclusive, as there is no bill of exceptions stating the proof, deemed to be immaterial, from which this court can determine whether that judgment were correct or erroneous.

But it is further said, that the evidence of Erwin clearly proves the fact in issue by the pleadings. If the pleadings, put in issue only the fact as to whether the defendant paid a part of the debt and promised to pay the balance soon, then is the issue immaterial, and no judgment ought to have been pronounced upon the finding, but a repleader should have been awarded. If they put in issue the fact, as to whether the defendant requested the plaintiff to delay his suit, then the proof does not sustain the verdict and a new trial ought to have been granted.

The judgment of the court below is therefore erroneous and must be reversed and the case remanded for further proceedings.  