
    McKenzie & Currie v. McColl, Judge, &c. use.
    1. The real estate of an intestate was sold-by commissioners under the order of an Orphan’s Court and a note taken from the purchaser; at the same time it was agreed between the commissioners and the purchaser, that the note should be paid only in proportion to the interest it should afterwards appear the intes. -fate had in the land; a suit being'brought in Equity to ascertain the intestate’s - interest, during its pendency, an action was brought on the note, to which the foregoing facts were specially pleaded in bar. — Held, that the plea was had on demurrer, and if the matter- was available as a defence, it shbuld be pleaded in abatement.
    2. If in an action on a promissory note, the jury return a verdict for an amount beyond what appears from the declaration to be due, the defendant, instead of prosecuting a writ of error, should seek its correction, by asking a new trial.
    3. It is hot-error to charge a jury that the Orphan’s Court when regularly-applied to, had the right to authorize the sale of the real estate Of- deceased persons .to pay debts, and that a sale made under an order of that court would trans. mit the title — there being nothing jn the record to show its incorrectness, or that the intestate had hot at the time of his death, both the legal and equitable . .estate coupled with the possession.
    THE defendant in error, brought an action of assumpsit against the plaintiffs in the Circuit Court of Barbour, on a pro-missary note, of the following tenor..
    “ $1836..66-100: Six months afterdate, we or, either of us promise to pay Alexander McColl, Judge of the County Court of Barbour county, or bearer, eighteen hundreed, thirty-six 68-100 dollars, value received. • ;
    February 4, 1839.
    Daniel McKenzie,
    John Cuheie.”
    The’defendants pleaded:
    1. Non Assumpsit.
    
    
      2. Failure of consideration.
    3. Want of consideration. •
    ' 4. T hat the note declared on, was given in part considera-: tion of certain lands of James Pugh, deceased, sold to said McKenzie, under an order of the Orphans’ Court. The amount of Pugh’s interest in the lands being uncertain, the same being claimed by one John Currie, as having been purchased by Pugh, for his use, it was at the time of the sale and making the note, agreed by the commissioners with McKenzie, that the note in suit, and other notes given for the purchase money of the lands, should be paid only in proportion to the interest which it might be afterwards decided Pugh had in the lands. And the defendants aver that a suit is now pending in equity to ascertain the interest of Pugh, in the lands.
    There was a demurrer to the fourth plea, and although no judgment appears to have been rendered thereon, yet the parties have admitted on the record, that there was a judgment sustaining it; the record does not show that issues were joined on the first, second and third pleas; the case however, was submitted to a jury, as the judgment entry recites, on issue , joined, and a verdict was returned for the plaintiff, for the amount of the note and interest,
    . On the trial, the defendants excepted to the ruling of the Court. By the bill of exceptions, it is shown that the note sued on was given for the lands of an insolvent intestate, sold by commissioners, under an order of the Orphans’ Court of Barbour county. At the time of the sale, a stranger was in possession, and has been ever since, though there was some evidence tending- to show the defendant’s assent to that possession. It appeared that the intestate’s title to the lands being disputed, the commissioners, at the time of the sale and making the note, gave the defendants a memorandum in' writing, by which it was ¿greed between them and defendant, that the note should be paid, only in proportion to the interest, it should afterwards appear intestate had in the lands. ■ It also appeared, that a case was pending-in chancery, at the suit of the intestate^s surviving partners, claiming the lands as partnership funds, and seeding to apply thorn to partnership debts. ’ 1
    The Court charged the jury, that the Orphans’-Court had jurisdiction of the subject, and that a sale under an order of that Court would transmit the title. ' • "
    The Court further charged, that although the memorandum might have-the- effect of so modifying the flote, that it'should not be. the subject of a suit, while'the litigation of the title was undecided, yet the defendánt could hot avail himself of such a defence under the state of the -pleadings ; that' it c'ould' only be taken-advantage of by-plea in abatement, or subsequent to adjudgment, and after a decree was. made' by bill in equity. To which charges the defendants excepted,-&c. and a judgment ■ being rendéred on the verdict of the jury, the defendants'have prosecuted a writ of error to this Court. !
    • Buford, for the plaintiffs in error
    contended:
    1. -The demurrer was improperlysustainedto the fourth plea. ■The facts alleged in that plea may have been admissible'as evidence under the general issue, yet that would only make it bad on.-special demurrer, while Oil demurrers in this Staté, are to he considered as-general. Aik. Dig. -9; 1 Chitty’s Plead. 500
    2. -The verdict and.judgment areTor á larger amount than was-due on-thé note forprincipal and:interest. • - ;s''
    • ;:8.. The-first charge was; toó broad; and wás' calculated to mislead thejury, and is indefensible in itself. The second charge is also opposed to authority and' practice- TChitty’s Plead. 470,-I,-.2 and 3: ■ ‘ ' • ' - ' - '
    ■Ha.-r.-ris, for the defendant
    insisted:
    - •■]'-. .The matter set out in the1 fourth plea, is'not available'’in barof the action,- but should have been - pleaded in'abatement. Perkins v. Gilman, 8 Pick. Rep'. 229;- Winans v." Huston,' 6 Wend. Rep-."471: see also'-IT Pick; Rep. 156. ' - "■ f'
    2; The second ground of objection cannot bé entertained on error, as the judgment was rendered'on' a'verdict; ifthe 'defendants are’aggrieved by the-'recovery'of'a sum beyond-' what was doe, they should have applied to the Circuit Court' for a new trial. Baldwin v. Stebbins, Min. Rep. 180.
    .3.. So far - as the evidence is disclosed by the bill of excep- . tions, there is no error in the first charge, and the Court will not intend that other facts were proved at the trial, for the purpose of reversing. Johnson v. Ballew, 2 Porter’s Rep. 29. The argument on the fourth plea, shows that the second charge was entirely correct. . . ..
   COLLIER, C. J.

The matter set out in the fourth plea, dogs not show that-the plaintiff never can maintain an action for the non-payment of the note declared on, and is. improperly pleaded in bar. Wherever the subject matter of the de-fence is, that the plaintiff cannot maintain an action atany time, it should generally be pleaded in bar; but matter which merely .defeats the present proceeding, and does not show that the defendant is forever concluded, should, in general, be pleaded in abatement. 1 Chitty’s Plead. 434.

In the case before us, the plea, at most, shows that the plaintiff's right of action was suspended -by. the agreement made with the, commissioners, until it was ascertained what interest .Pugh h¡ad at the time of his death, in the lands sold by them. If it should be determined that he had none, then and not sooner were the defendants relieved from the contingent liability to pay their note. The facts alleged then, are a mere assertion that the action was prematurely brought, and according to a well established principle, must have been pleaded in abate.ment,, 1 Chilty’s Plead. 443; Collier v. Crawford, Minor’s Rep. 100. The matter of the plea may be assimilated to a covenant, not to sue within a given time, or until the happening of a certain event; if the suit is brought too soon, the action can only he abated. Prescott v. Tufts, 7 Mass. Rep. 209; 5 Dane’s Ab. Ch. 176, Art. 9, § 10; Platt on Cov. 574. But where there is a covenant perpetual not to sue, it amounts to a release„and may be pleaded in bar. Platt on Cov. 574.

The judgment, if not for the precise sum due .on the note, is for very little more; but even were it otherwise, it furnishes no ground for. its reversal or correction. The jury have ascertained by their verdict, what the piantiff was entitled to- recover, and the judgment conforms to their finding; and the defendants remedy according to repeated decisions of this Court, • was by an application to the Court below, for a new trial. Baldwin v. Stebbins, Minor’s Rep. 180; Moore v. Coolidge, 1 Porter’s Rep. 280.

The first charge of the Circuit Court, may, under some circumstances, have been improper, while under others, it would be strictly correct, but there is nothing in the record-to show that it was unauthorised. The intestate, Pugh, for. any thing appearing to the contrary, may have had both the legal and equitable estate coupled with the possession. Upon thatsupposition the charge is unobjectionable; for the law vesting .the Orphans’ Court with authority to decree the sale of the realestate of deceased persons for the payment of debts, &c. its decree would have the effect to transmit the title of lands thus sold to the purchaser. Beyond this, we do not understand the charge to go- .

What we have said upon the demurrer to the fourth plea, shows that the second charge of the Court was quite as'favorable to the defendants, as the law would permit.

There'is no available error in either of the points made by the plaintiffs in error, and the judgment of the Circuit Court is consequently affirmed;

Judge Goldthwaite being related to the person for whose use the action was brought, did not sit in this cause.  