
    Minor v. Minor’s Adm’r.
    July Term, 1851,
    Lewisburg.
    (Absent Cabell, P.)
    1. Executors and Administrators — Actions by — Set-Off —Case at Bar. — In an action of assumpsit, by an adm’r for a debt due bis intestate in his lifetime, defendant cannot set off a debt due him for money paid as the surety of the intestate since his death.
    2. Pleading and Practice — Assumpsit—Bill of partid! iars; — Case at Bar. — The court in an action of as-sumvsWby an adm'r, is for money had and received, and the bill of particulars merely states an account in which the defendant is debtor to the adm’r for money received, stating a sum certain. The count and the bill of particulars are not sufficient to admit proof of an admission by the defendant that he had received from a third person a certain sum belonging to the estate of the plaintiff’s intestate.
    This was an action of assumpsit brought in the Circuit court of Monongalia county by A. W. Tenant, adm’r of John Minor, against Samuel Minor. The declaration contained two counts for money had and received; the first for money had and received to the use *of the plaintiff’s intestate in his lifetime, the other for money had and received to the use of the plaintiff, as administrator of John Minor. The bill of particulars filed with the declaration, was:
    Samuel Minor,
    To John Minor for money received, $ 300.
    Samuel Minor,
    To plaintiff as adm’r, for money
    received, $ 300.
    The defendant appeared and pleaded the general issue, and also a plea of set off to the first count, and the statute of limitations, on which issues were made up. He also offered a plea to the second count of the declaration which is called the defendant’s third plea, in which he alleged that the plaintiff, as the administrator of John Minor deceased, before and at the commencement of the action, was indebted to the defendant in the sum of 1500 dollars, for money by the defendant paid as the security of John Minor, since his death, which exceeded the damages complained of in the declaration, and out of which money the defendant was willing and offered to set off and allow to the plaintiff as administrator as aforesaid, the full amount of the said damages. This plea the plaintiff moved the Court to reject, which motion the Court sustained, and the defendant excepted.
    On the trial of the cause the plaintiff offered evidence tending to prove that the defendant admitted in March 1846, that he received from one Lancaster Minor in the spring of that year, 250 dollars belonging to the estate of John Minor deceased, the plaintiff’s intestate; to the introduction of which evidence the defendant objected upon the ground that neither the declaration nor the bill of particulars filed therewith, gave to the defendant sufficient notice of any such claim. But the Court overruled the objection and admitted the evidence; and the defendant again excepted. There was a verdict and judgment for the plaintiff for 250 dollars, with interest *from the 31st of March 1846: whereupon the defendant applied to this Court for a supersedeas, which was allowed.
    A. E. Haymond, for the appellant.
    Guy R. C. Allen, for the appellee.
    
      
      Pleading and Practice — Assumpsit—Bill of Particu=> lars. — In Mann v. Perry. 3 W. Va. 581, It is said: ‘ ‘The count was upon an account stated for 600 dollars, without a bill of particulars. The evidence excluded was to prove an account stated for 500 dollars. Under the ruling in the case of Minor v. Minor. 8 Gratt. 1, it was properly excluded as irrelevant to the issue underthe pleadings as they were.”
    
   ALLEN, J.,

delivered the opinion of the Court.

It seems to the Court here, that the Circuit court did not err in rejecting the plea No. 3, tendered by the plaintiff in error, and set forth in the bill of exceptions taken to the decision of the Court rejecting the same. But it further seems to the Court here, that the Court erred in overruling the objection of the plaintiff in error to the introduction of evidence offered by the defendant in error, as tending to prove the particular item or claim sought to be recovered as set forth in ,the bill of exceptions taken by the plaintiff in error at the trial to the decision of the Court admitting said testimony: This Court being of opinion, that neither the declaration or bill of particulars gave the plaintiff in error sufficient notice of any such claim or item. Reversed with costs, verdict set aside, and cause remanded for a new trial; upon which, under _ the pleadings as they now stand, and unless another bill of particulars be filed describing the claim or item with sufficient certainty, such evidence offered and objected to is not to be admitted.  