
    NOVEMBER TERM, 1844.
    John C. Turner and Co., use, &c. v. Nancy Ann Brown.
    In an action on a promissory note by the assignee against the maker, the latter will not be permitted to prove what consideration the former gave for the note. If such proof is admitted by the Court, when objected to by the as-signee, it is error, and a new trial should be granted.
    This was an action of assumpsit, brought in the Circuit Court of Yazoo county, by John Turner & Co., for the use of Robert Edrington, as administrator of the estate of Burwell T. Edrington, against Nancy Ann Brown, on a promissory note for $919.17, made by the defendant, and payable to the order of John Turner & Co., due on the 1st day of January, 1839. The declaration was in the usual form, and the defendant pleaded non assumpsit. Upon the trial, the plaintiffs read in evidence the note sued on, and rested their case. The defendant then proved that John Turner & Co. had a claim, an open account for merchandise, against the estate of Jesse S. Brown, deceased, of which the defendant was administratrix; and that Turner, after repeated visits to the defendant, and a great deal of importunity, which continued for about two weeks, prevailed on the defendant to give fourteen bales of cotton, in part payment of said account, Turner agreeing to allow for the cotton one cent per pound more than the market price, and to execute the note sued on for the balance ; that Turner assured her he would never look to her for the payment of the note, his only motive in asking the note being to place his claim in a stronger shape against the estate ; that the estate of Jesse S. Brown had been duly declared insolvent, and would not pay more than ten cents' on the dollar; that when the defendant executed said note she had no assets in her hands, and that she has had none since. The defendant further offered to prove that Burwell T. Edrington,, in his life-time, stated he had given John Turner & Co. $125, in Brandon money, for said note. To this evidence the plaintiffs objected. The Court overruled their objection, and permitted the evidence to go to the jury, to which the plaintiffs filed their bill of exceptions ; which being all the evidence offered on either side, the plaintiffs’ attorney then moved Ihe Court to instruct the jury as follows :
    1st. That if the note in controversy was executed for a valuable consideration, the defendant is responsible for its payment in her individual capacity; and that, even if she did execute it in ignorance of her legal rights, it will not excuse her from its payment; which the Court gave.
    2d. That if the jury believe, from the evidence, that John C. Turner & Co. gave the defendant twelve months in which to pay said 'note, that it was a valid consideration, and sufficient to confer full right to recover upon said note. This instruction the Court refused, but stated to the jury, that if they believed, from the evidence, that the consideration of the note was forbearance to sue, that would be a sufficient consideration to support the action.
    3d. That the payment of some of the debts of the estate by the administrators is evidence that the estate was solvent at the time thereof; which instruction the Court refused.
    4th. That the execution of a note for an account extinguishes that account; which was given.
    5th. That if the jury believe, from the evidence, that the administrators and administratrix had assets in'their hands at the time of the execution of the promissory note in controversy, then that is another circumstance to fix the defendant’s liability individually ; which was refused by the Court.
    The defendant, by her counsel, then moved the Court to instruct the jury as follows :
    1st. That if they believe, from the evidence, that Mrs. Brown executed this note without valuable consideration, they must find for the defendant; which instruction the Court gave.
    2d. That, even if they believe that the note was executed by the defendant in consideration of forbearance or indulgence, this did not constitute a sufficient consideration to render it binding on her, unless she had in her hands assets of the estate for the payment of the debt: it would bind her to the amount of the assets in her hands ; which instruction the Court gave'.,
    
      3d. That if they believe, from the° evidence, that the note sued on was given by the defendant in consideration of assets in her hands, the plaintiff can only recover the amount which would have been paid out of the assets on this claim in the due course of administration ; which instruction the Court refused to give.
    4th. That if they believe that the note sued on was obtained by fraud, they must find for the defendant; which instruction the Court gave.
    To which several opinions of the Court, overruling the instructions of plaintiffs’ counsel, and granting the instructions of defendant’s counsel, plaintiffs’ counsel excepted, and filed their bill of exceptions.
    Plaintiffs, by their counsel, moved for a new trial, because the jury/ound contrary to law and evidence ; which motion was overruled, and plaintiffs’ counsel again excepted.
    ' And afterwards, at the same term of the Court, plaintiffs’ counsel entered another motion for a new trial, because one of the jurors who tried the cause was an alien and disqualified — a fact discovered since the trial of the cause, and since the hearing of the former motion for a new trial; which last motion was granted, upon plaintiffs’ paying all the costs within ninety days. The costs in the case were not paid within the ninety days, but were paid before the cause was called, at the first term of the Court after the granting of the new trial, and before the case was regularly reached on the docket.
    At the May term, 1843, which was the first term after granting the new trial, defendant’s attorney moved the Court to strike the case off of the docket, because the costs were not paid within the ninety days ; which motion the Court sustained. To which opinion of the Court the plaintiffs’ counsel excepted. And afterwards, at the same term, the plaintiffs’ counsel moved the Court to reinstate the cause upon the docket, and proceed to dispose of it, unless the defendant desired a continuance, because the costs were paid before the cause was regularly reached on the docket and called for trial, &c. ; which motion the Court overruled. To which opinion, plain-, tiffs, by their counsel, excepted, and filed a bill of exceptions to the Court’s opinion, striking the cause off of the docket and then refusing to reinstate it.
    
      
      Battaile, for plaintiffs in error.
    The record in this case shows many gross errors of the Court below ; the result of which has been to deprive the plaintiffs in error of that justice, to which the law of the case clearly entitled them, had it been administered. The promissory note sued in the case below, was undoubtedly a contract upon which the plaintiffs in error should have recovered.
    No principle of law is better established, than that the creditor’s forbearance to sue, is by itself, and without possession of assets at the time of the promise, sufficient consideration to support an executor’s promise. 2 Lomax on Ex’rs, p. 275, 276, and the authorities there cited ; 7 T. R. 350 ; 1 Ves. 126 ; 2 Eq. Cas. Abr. 456 ; 2 Leigh’s N. P. 990.
    Another principle of law equally well established, and which is based on the preceding, is, that the promise of an executor to pay the debt of the testator at a future day, will bind him personally. 2 Lomax on Ex’rs, p. 277, and authorities there cited ; 1 Ves. 126 ; 2 Brod. & Bing. 460 ; 3 How. 181.
    Although some of the instructions of the Court are contradictory, yet it seems from the second instruction which was asked for by defendant’s attorney and given to the jury, that the Court below and the attorney for defendant below, were of opinion that forbearance to sue was not alone a sufficient consideration to support a promise by the administratrix, but must be accompanied with sufficient assets, — than which a more erroneous legal opinion was never entertained. There are many decisions, it is true, that forbearance to sue, and the possession of assets, constitute a sufficient consideration to support an administrator’s promise to pay a debt against his decedent’s estate. But there are also equally as many decisions to the effect, that possession of assets alone, or forbearance to sue alone, will either of them constitute sufficient consideration for such a promise. See 2 Lomax on Ex’rs, p. 274, and authorities cited in note (s) ; 2 ibid. 275, 276, and authorities cited in notes (x) and (b).
    And upom this ground, that the possession of assets is alone a sufficient consideration of the promise of the defendant, the refusal of the Court to give the fifth instruction of plaintiffs’ attorney, was clearly error ; and this is the most familiar doctrine about the liability of administrators to creditors. The possession of assets is always prima facie evidence of liability on the part of an administrator to creditors ; and the possession of assets creates the duty to pay debts. Hence the payment of debts being a duty consequent upon the possession of assets, the payment of debts is prima facie evidence of the possession of assets ; 'therefore the Court unquestionably erred in refusing to give the third instruction asked by plaintiffs’ attorney. The payment of debts being a fair presumption of assets, it was also a presumption of the solvency of the estate.
    The application to the case of the first, third, and fourth instructions of defendant’s attorney, it is difficult to perceive. The first was irrelevant, because the evidence in the cause did not pretend to establish any valuable consideration for the note as between defendant and plaintiffs. The third instruction was certainly not applicable to the case at all. The plaintiffs did not by their suit ask for any application or marshalling of the assets of Brown’s estate, The proposition of law it involved, if indeed it involved any, could not direct the -jury as to the verdict they should give. It might, however, mislead the jury.
    The fourth instruction asked for by defendant’s attorney, was' also wholly uncalled for by any evidence in the case. Where is any proof of fraud ? The testimony about Turner saying to the defendant that he would not look to her for payment, that he wished to have the claim in such a shape as would make it stronger against the estate, does not show any fraud. He of course meant that he expected the assets of the estate, being in her hands, would be used to pay the note, and that she would not lose the amount out of her own pocket. If that testimony means anything more, it is utterly illegal and incompetent; because such testimony is directly contradictory to the written evidence, the promissory note, which last was surely the best evidence, even if the other could be received to contradict it. But it also presumes ignorance of law in the defendant, which cannot be presumed. She, having undertaken in writing to pay the debt, must have known that she was looked to for payment, and was liable for the same ; therefore there was no misrepresentation, and the defendant was not deceived. She signed the note voluntarily, and made it payable nearly twelve months after date, and sold the fourteen bales of cotton at one cent per pound more than the market price, by which she decidedly had the advantage in the transaction. If there was any fraud, it was on her part,, in extorting from a creditor advantages, whilst she held assets of the estate in her hands. The charge of fraud, however, is completely turned against defendant, as the Court, by an inspection of the last bill of exceptions taken in the case, can see ; from which, by the admitted evidence, it seems that defendant, with her co-administrators some time'subsequent to the giving of said promissory note, settled an administration account with the Probate Court of said estate, and charged said estate with the amount of said promissory note, as so much money paid by defendant, as ad-ministratrix, and on which settlement, defendant and her co-administrators fell largely in debt to said éstate in balancing accounts.
    The instructions given by the .Court below, were some of them highly objectionable and erroneous, in being palpably contradictory; as will appear from a comparison of the instructions. In refusing to give the second instruction asked by plaintiffs’ attorney, the Court stated to the jury, that forbearance to sue was a sufficient consideration for the- action ; and in the second instruction asked by defendant’s attorney, which was given, the Court instructed the jury, that forbearance to sue, or indulgence, did not constitute a sufficient consideration.
    It is confidently believed, that the verdict of the jury was against law and evidence, and should.have been set aáide by the Court upon that ground ; and certainly • ought not to -be allowed to stand and conclude the rights of the plaintiffs. The Court has seen, that, by the promise of an executor to pay the debt of his testator at a future day, he becomes personally responsible. It is also well settled, that, if an executor or administrator give a promissory note, it is prima facie evidence of assets, and the burden of proving a deficiency of assets in such case is on the defendant. 13 Wend. Rep. 557.
    'A promissory note imports a consideration. 13 Wend. 557.
    The note, therefore, was sufficient evidence of itself to enti- ’ ’ j 
      tie the plaintiffs to recover, notwithstanding the evidence introduced by defendant, to show that she had in her hands no assets, or that there was not a sufficiency of assets. But the proof does not establish such a state of case as either of those pretended. Defendant’s own proof shows that she had assets in her hands at that time ; that is, the date of the note. What if the estate was declared insolvent three or four months afterwards ? This does not prove that defendant had no assets in her hands at that time. An estate may be declared insolvent by a slight deficit of assets to pay all the debts ; or at any rate whilst an administrator may have considerable assets in his hands. The testimony that the claims against said estate were worth ten cents in the dollar, at the time of trial of the suit, November, 1842, shows that then defendant had some assets in her hands. It further appears, from the evidence stated in the second bill of exceptions, that defendant, on an interlocutory settlement with the Probate Court, as adminis-tratrix, was found largely indebted to said estate ; and although no date of this interlocutory settlement is stated in the bill of exceptions, yet this Court well knows it must have been before the estate was declared insolvent, as in truth it was. The statement of one of the witnesses, that defendant had no assets in her hands at the time she gave the note, is evidently a mistake, as is shown by other portions of-that witness’s evidence ; and by other evidence in the case, the administration appears to have been joint, and assets in the hands of one of the administrators would, in law, be considered in those of all. Upon every view of the evidence, the verdict should have been for the plaintiffs.
    The proceedings of the Court in granting the new trial, on motion of the plaintiffs, were strictly regular and legal. A Circuit Court may entertain a second motion for a.new trial at the same term of the Court, after overruling the first. The grounds upon which the .new trial was granted were certainly good. .
    Jurors must be “ omni exceptione majores,” free from all exception, and wholly disinterested. 3 How. 30 ; 4 How. 506 ; 2 J. R. 194 ; 1 Yerger’s R. 432.
    An alien is incompetent to be a juror. How. & Hutch. Dig. 620; 1 How. R. 181; 6 J. R. 333.
    
      It is a genera 1 rule, that whatever would be good cause of challenge to a juror, if known-in time, would be good cause for a new trial, if not discovered in time to make the objection. Hardin, 167 ; 4 Bibb, 45 ; 3 Bibb, 347 ; Littel, Sel. Cases, 266 ; 4 Bibb, 191, 272 ; 2 Pirtle’s Dig. 107, 108, 111 ; 6 J. R. 333 ; 1 Am. Com. R. 311 ; Graham on New Trials, 33.
    One of the jurors being an alien, therefore in law no juror, which fact was not known to plaintiffs until after the trial, the plaintiffs actually had not the privilege of trial by jury.
    Furthermore, it is insisted that the Circuit Court erred, in striking the case off of the docket, on motion of attorney for defendant, at the first term of the Court succeeding that at which the new trial was granted ; and also in refusing to reinstate the case, on motion of plaintiffs’ attorney in that Court. Our statute provides, that “ every new trial granted at law, shall be on such terms and conditions as the Court shall direct.” How. & H. Dig. 616. This was but declaratory of the Common Law practice of the Courts. See Graham on Nevv Trials.
    If some of the States of this Union, in which decisions have been made upon this point of practice have not statutes on this subject similar to ours, they have, however, the Common Law in force with them. Therefore, the decisions of the Courts of other States on this subject, are authority here. If I mistake not, this Court has decided, that the decisions of the Courts of other States upon^ statutes similar to our own, were authority with this Court. And why not authority upon a principle, of practice at Common Law which pervades all the States ?
    Our Nisi Prius Courts, it is not denied, have the power to impose terms and conditions, on granting new trials. But it is contended, that the order of the Court imposing such terms and conditions, should stipulate that such terms and conditions should be complied with in term time, and not in vacation. The Court has no authority in such cases in vacation. If they have, when the Court grants a new trial on payment of costs within ninety days, they would be conferring judicial authority upon the clerk to receive the costs, and determine whether the conditions and terms have been 'complied with; which the Court cannot do. Such orders are declared by the Supreme Cotrrt of Kentucky mere matters in pais, and are nullities. 1 J. J. Marsh. 479. That such authority would bean exercise by the clerk, of judicial power, is evident from the fact, that the parties might dispute what amount of costs were due, which the clerk would have to decide.
    But such stipulations may be nullities and rejected as surplusage, and leave unaffected the order granting a new trial.
    It is contended for defendant, that the payment of the costs within ninety days, was a condition precedent to the granting or taking effect of the grant of the new trial. This position, however, is incorrect. For if this be true, the grant of the new trial would be an act not done in term time, but in vacation, or the grant would, operate only from the expiration of the ninety days, until which time the judgment and verdict would stand, and the former be operative. Or the verdict is not set aside until the costs are paid, and would be equivalent to granting the new trial in vacation. This would diminish very much the advantages of a new trial.
    Now I am willing to admit that the payment of the costs is, or should be, a condition precedent to the having the benefit of the second trial; but if they are paid before the suit is called for the second trial, it is all that should be required. The counsel of defendant says, that this matter of imposing terms and conditions, and regulating them, is entirely discretionary. Be it so ; yet this discretion is not so unlimited as is supposed. It should be governed by a proper regard for the rights of parties, and a just rule of practice ; and not be dependent on the mere caprice of Judges ; and in fact, it is settled by the general practice as declared in Virginia, Kentucky, Pennsylvania, and New York. This matter of costs, though small in itself, involves frequently the whole rights of the parties in the suit, as in this case.
    The counsel for defendant contends not only that the payment of the costs within the ninety days was a condition precedent, but that on the expiration of the ninety days, without the costs being paid, the case was at an end, and, the plaintiffs out of Court. If this conclusion be correct, it results‘that the plaintiffs, for the paltry sum of $15 or $20 costs, would lose their whole claim of more than $1000, with interest, when their claim was a just and legal one, and they had not had the benefit of the privilege of trial by jury. This, would be a sacrifice of great interests for small considerations, notwithstanding the maxim, “ De minimis non curat lex,” and is not to be tolerated.
    But the true rule of practice in such cases, as recognized by the Supreme Courts of Virginia, Kentucky, Pennsylvania, and New York, and heretofore adopted in this State, is, that if the party obtaining the new trial pays the costs before the calling of the cause at the next term of the Court, the Court ought not to refuse the party the benefit of the new trial; but if the opposite party asks for a continuance, upon the ground that he was under the belief that the right to the new trial would be waived, the Court should continue the case. The following cases are authority for the rule of practice above laid down. 2 Hen. & Munf. 617 ; 4 Munf. 207 ; Gilmer’s (Va.) R. 123; 1 Virginia Cases, 123 ; 2 Wharton’s Dig. 435 ; 1 Penn. Rep. 399 ; 2 Tucker’s (Jus.) Com. 30S, 309 ; 2 Wend. 293 ; 7 Wend. 522 ; 6 Cow; 582; 5 J. J. Marsh. 243; 3 J. J. Marsh. 169 ; 9 J. R. 370 ; 4 Munf. 364 ; 2 Hen. & Munf. 614 ; Graham on New Trials, 600 ; 1 New York Dig. 528 ; 2 Pirtle’s Dig. 116, 122, 123 ; Littel, Sel. Cas. 20 ; 1 Metcalf & Perkins’s Dig. 538, 608, 611 ; 1 Hall’s Digestfed In. 164.
    And there is no authority in the English Reports or books of practice against the rule here contended for.
    Upon the above grounds and authorities it is confidently hoped that this Court will reverse the judgment of the Court below ; the consequence of which, if affirmed, would be to deprive the plaintiffs in error of the right to recover upon a contract just and valid, being undoubtedly founded on a good and sufficient legal consideration, and that without the right of trial by jury, secured to every citizen inviolate by the Constitution.
    
      R. S. Holt, for defendant in error.
    The errors relied on by the plaintiffs in error are, 1st. Those committed by the Court in giving and refusing instructions asked for on'the trial. 2d. In annexing a condition to the grant of a new trial. 3d. In sustaining the motion to strike the cause from the docket at the May term, 1843, and refusing to sustain a motion to reinstate it.
    
      Whether the Court did or did not err in its instructions, depends upon the evidence to which those instructions were intended to apply. That evidence was substantially as follows : The defendant was administratrix of her deceased husband. John C. Turner & Co. held an account against the estate. Mr. Turner visited defendant at her house, and after two weeks importunity induced her to make a partial payment of the account with some cotton of the estate in her hands ; that “ hethen_urged her to close the balance of said account with her promissory note,” alleging, £C that if she would do so he would not look to her for payment; that he wished to have the claim in a shape which would make it stronger against the estate of her husband, and that there was no other consideration for said note.” <£ That she did execute accordingly the note sued on.” That the estate of J. S. Brown is insolvent, and will not pay ten cents per dollar ; that defendant had not, when she made said note, nor has she since, had any assets in her hands ; that the intestate of the usee purchased the note sued on for the sum of one hundred and fifty dollars, in Brandon money.
    The second instruction of plaintiff was properly refused as asked for; because it required the Court to respond to a question'of fact, and say that the time given to Mrs. Brown was the consideration for her promise. The instruction, as given by the Court, is unexceptionable.
    This instruction, as asked for, is further objectionable, as requiring the Court to say that the indulgence given to defendant conferred a full right of recovery, which would have excluded from the consideration of the jury every other defence.
    The third instruction of plaintiff was properly refused, because, first, it called upon the Court to respond to a question of fact; and second,- because the solvency of the' estate was immaterial to the issue. The estate might have been solvent, and the defendant yet had nó assets in her hands.
    The fifth instruction of .plaintiff was properly refused, first, because declaratory of a fact; and, second, because there was no evidence before the jury tending to prove that the defendant had assets, but conclusive proof that she had none.
    The second instruction asked for by defendant, is unquestionably sound law. Where an administrator has promised to pay the debt of his intestate, the extent of assets in his hands is the measure of his liability. 8 John. R. 120 ; 1 Pirtle’s Dig. 423.
    If the administrator has no assets, he derives no advantage from the indulgence which he receives, and the creditor suffers no prejudice from delaying to institute a suit which he -has no right to institute.
    The creditor of a decedent has no lawful right of action against the administrator, if he have no assets in his hands.
    But even though this instruction should in the abstract be erroneous, it cannot infect the record, because it asserts a purely abstract principle of law, there being before the jury no facts to which it could apply. It is founded on the assumption that the note was proven to have been given in consideration of indulgence, when in fact there was before the Court no proof tending to establish the fact, but, on the contrary, the most positive proof that the noté was not founded on that consideration.
    An erroneous instruction of an abstract principle of law will not be ground for reversing the judgment, for two reasons ; first, it is presumed to have had no influence on the deliberations of the jury, upon a proposition of fact to which it had no reference ; and second, because the Court, in giving such instruction, acts extra-judicially, and this Court is only constituted to correct judicial errors of inferior tribunals. 4 Howard, 304.
    In the second place, the Court did not err in the grant of a new trial, on payment of costs within ninety days. The language of the statute is, “ Every new trial granted by law, shall be on such terms and conditions as the Court shall direct.” How. & Hutch. Code, 616. In the exercise of this discretionary power, the Court cannot, upon familiar principles, be controlled by the appellate jurisdiction.
    In the third place, the decision of the Court, directing the cause to be stricken from the docket, was correct. If, in refusing to retain the suit on the docket, after the failure of the plaintiff to comply with the condition upon which the new, trial was granted, the Court exercised a discretionary power, then its decision cannot be disturbed. Was it then positively incumbent on the’ Court to retain the cause on the docket ? ¡
    
    
      The verdict of the jury, and the judgment upon it in favor of the defendant, was a final determination of the cause, by which it went off the docket, and the defendant went out of Court. The Court made an order that the verdict and judgment should be set aside, the cause restored to the docket, and the defendant detained in Court, upon the express condition precedent, that plaintiff should pay all costs within ninety days.
    At the succeeding term, the cause was off the docket by virtue of its final decision,'and had not been restored by the order granting a new trial, because from the non-performance of the'condition precedent, that order had never taken effect. The Court could not grant a new trial, because it had no control over the record of the preceding term ; and it could not modify the terms upon winch the new trial had been granted at the previous term, for the same reason.
    Upon the clearest principles, then, the cause was off the docket, and the Court could not restore it when this motion was made. The defendant was out of Court, and could not have been bound by the action of the Court against her.
    From these considerations, we think that no error occurred in the proceedings, as set forth in the record, and the judgment below should be affirmed.
   Per Curiam.

This suit was brought 'by John C. Turner & Co. for the use of Robert Edrington, administrator, on a promissory note for $919, made by the defendant. The defendant obtained a verdict, and the plaintiff made an unsuccessful rpotion for a new trial. A second motion for a new trial was sustained on plaintiffs paying the costs within ninety days. At the succeeding term, a motion was made to strike the case from the docket, because the costs had not been paid within the ninety days, which was sustained ; whereupon' the plaintiff moved to reinstate the case, which was refused. We shall not inquire into the merits of the several motions. The plaintiff took a bill of exceptions on overruling his first motion, and on that he is entitled to have the case considered. The subsequent orders were in effect to refuse a new trial, so that the case was left as it had stood on overruling the first motion.

It seems that Jesse S. Brown, the husband of defendant, was, in his lifetime, indebted to Turner & Co. After Brown’s death, Turner applied to the defendant, who was administratrix, for payment. She- paid part, and was prevailed on by Turner to give her note, payable at a distant day, for the balance, under assurances that she should not be looked to for payment; but that the object was to place the claim in a stronger shape against the estate. The estate was afterwards declared insolvent, and the defendant had no assets in her hands when she gave the note.

During the trial, a witness was permitted to state that he had heard Edrington, the assignee, say, that he had given Turner &Co. one hundred and twenty-five dollars, in Brandon money, for the note. The plaintiff objected to the admission of such testimony; but the objection was overruled. This was error. As between the assignee and the maker, it was immaterial what the former had paid for the note. The price he paid did not diminish the defendant’s liability. She contracted to pay so much, and by the assignment the assignee became entitled to the amount of the note. As between the assignee and the assignor the question might be different.

On the other points raised, we need do nothing more than throw out a few intimations which may be worthy of consideration on the second trial. If the note was procured by fraud, it of course imposes no liability. In general, it seems that a promise by an executor or administrator, to pay the debt of his testator or intestate, is not binding without a consideration. The considerations which would make such promise binding are various ; as having assets at the time ; forbearance to sue for a definite time ; or, if the administrator has charged the estate, and received an allowance as a credit on his indebtedness to the estate, it would be a strong circumstance against him. So, it seems, giving a promissory note bearing interest' will make him personally liable. Lomax on Executors and Administrators, 275-277.

Let the judgment be reversed, and cause remanded for a new trial.  