
    Ament et al. versus Sarver et uxor.
    1. In a case stated, whenever the evidence of thz facts is given, instead of the facts themselves, the court will treat the case as in the nature of a demurrer to evidence, in which they may draw every inference against the party demurring, which a jury might reasonably draw.
    2. Plaintiff was a widow, administratrix, and defendants, administrators, having the assets of the estate in their hands. Defendants agreed to give their notes to plaintiff, for her share, in consideration of which, she agreed to forbear the collection thereof for one year. Held, that this suspended her remedy in the Orphans’ Court, and gave her a common law action in the Common Pleas.
    Error to tbe Court of Common Pleas of Westmoreland county..
    Tbe questions to be determined, arose upon tbe following stated case:
    “John George died intestate, leaving a widow, now tbe wife of Jonathan Sarver, tbe plaintiff. Letters of administration on bis estate were granted to bis widow, Pbrena, now married to tbe plaintiff, and Jacob B. Ament and George Sherbondy, tbe defendants. Tbe real estate of tbe said intestate, was sold by his administrators for tbe payment of debts. Tbe administrators, to wit: Pbrena George, Jacob B. Ament, and George Sherbondy, settled a joint-administration account, which was confirmed 19th Nov. 1844, showing a balance in their bands of $950, arising from tbe sale of the real estate. A decree of distribution was made of this balance, by tbe Orphans’ Court; two-thirds to tbe children, and tbe remaining one-third to remain in tbe bands of tbe administrators; tbe interest thereon to be paid to tbe widow on tbe 19th November, in each year during her life, from tbe confirmation of tbe administration account. '
    “ Tbe following evidence of John George is made a part of the case: ‘ I was guardian of some of tbe children by tbe first wife. I was present at a settlement of John George’s estate between tbe administrators; but about tbe time their account was settled in court, George Sherbondy, Jacob B. Ament, and Phrena George, were all present; she wanted to know bow she would get her money; they said if she would wait on them a year, they would give her a note and good security. She agreed to do so. It was her share of $950 they were speaking of. They both agreed to give their notes.’
    “This suit is brought to recover tbe interest on tbe one-third of tbe balance in tbe administrators’ bands; to wit, $950, from tbe confirmation of the account, and decree thereon, till ■the bringing of this suit.”
    
      The court entered judgment on the stated case, in favor of the plaintiffs, the amount to be liquidated by the prothonotary.
    The entry of the judgment for plaintiffs, is the error here complained of.
    Foster, for plaintiffs in error,
    contended, that the Common Pleas had not jurisdiction of the case, but that it must be settled in the Orphans’ Court, and referred to McFevitt v. McFevitt, 4 Watts, 384; McFadden v. Sunt, 5 W. & S. 471; Simeon v. Albright, 12 S. & R. 428.
    
      Coulter, for defendants in error.
   The opinion of the court was delivered October 20, 1852, by

Lewis J.

— In this case stated, the evidence of the facts is given, instead of the facts themselves. Whenever this is done, we must treat the case as in the nature of a demurrer to evidence, in which the court may draw every inference against the party demurring, which a jury might reasonably draw. Taking this view of the testimony of John Greorge, in connection with the other facts stated, we have no difficulty in drawing the inference, that the defendants below, had the funds of the decedent’s estate in their hands, including the share of the widow, and that in consideration that she would agree to forbear to enforce her claim, for the term of a year, they jointly promise to give her a note, and good security for the amount. There is sufficient consideration for the promise. The action may be sustained on it, and the Common Pleas have jurisdiction, notwithstanding the settlement of the administrators’ account in the Orphans’ Court. The agreement for a year’s forbearance, placed the claim upon a new footing. It suspended her remedy in the Orphans’ Court, and gave her a common law action in the Common Pleas, on which she might have recovered a judgment for the whole sum of $316.66-f, with interest, from the 19th November, 1844, that being the amount for which they agreed to give their note, with security. Upon such a recovery, she would hold the principal sum in trust for the parties entitled at her death. But it is stated in the argument, that the action is brought to recover the interest on that sum, and we suppose that the court below intended to render a judgment for that amount only. If we knew how to impress upon the minds of counsel, the necessity of seeing that a final judgment is entered, before a writ of error is taken out, we would certainly make another effort. It is satisfactory to us to know the precise nature and extent of the judgment we are called upon to review; and it is natural that the parties themselves, should feel some interest in knowing how far their rights are conceded by an affirmance here. But as the main question was argued without objection, we have disposed of-it, without intending our action to be regarded as a precedent.

Judgment affirmed.  