
    CARADINE vs. BALFOUR, Adm’r.
    in an action by an■^[^strator, wherein the defendant craved oyer of the letters ofadminiitratibffy produced °* °rcIer 0í'>'UJpGíntnient, by the orphans’s court, will not do; the letters must bo
    ABSTRACT & -tjujj. 0j. G. HOWARD, ESQK.
    This is an action of debtbroug,t by william Balfour, in his right as administrator of James Mathie decea&v^ and founded on the promissory note of Caradine, made by him to the said westate, on 19th January, 1828, for $157.82.
    The declaration alleges that plaibtiff obtained letters of administration from the orphans’court of Madison couuy5 and pleads prof ert of them.
    
    The defendant below craved oyer, set few, ¡bg paper rend to him, and demurred. The paper of which oyer wag giv»n, was in words and fig' ures following, to wit:
    
      “State of Mississippi, Madison county:
    
    Orphans’ Court, July 1829.
    Ordered by the court that William Balfour have lett®rs of administra^ tion on the estate of James Mathie, deceased, William Gartty and William L. Balfour be appointed securities.” Which paper was. certified by the clerk of the Orphans’ court.
    The defendant below assigned for cause of demurrer that the paper produced in oyer was not the letters of administration, but was a mere order; of court which did not appear to have been complied with; nor did it show that letters ever were issued. The court overruled the demurrer. The. defendant then plead in two pleas in bar
    1. Nemques administrator;
    
    
      2 Payment to intestate..
    
    In support which latter pfea, defendant filed'a bill’of discovery, which was disallowed by the court, and to which defendant excepted; and withdrew his plea of payment, after his bill of discovery had been disallowed. The case then went to the jury, on the other issue.
    rJ?he paper read in oyer was all the evidence offered to the jury, to the admission of which, and also to the court’s charging on the weight of evidence, the defendant excepted. The jury found a verdict for plaintiff, and judgment was rendered thereon.
    BRIEF.
    íhe defendant’s bill of discovery ought not to have been rejected. As the statute of 1S28 has transferred to courts oflaw the power to grant bills of discovery, if a court oflaw improperly refuse to allow the bill; see statute of 1829, page 109, ch. XC. It is an error at law; the defendant has a right to except to such illegal opinion; and an appeal, or [.writ of error to this court can alone be resorted to for relief; 1 Pothier, Evans’ edition,from page 478 to 503, and more particularly pages 492 and 493.
    By the bill, the intestate appears to have sold 39 bales of cotton and received the money, ones,quarter of which belonged to the defendant. The intestate held this money for the defendant’s use, and the court of law had full power to render him relief, under the statute of this state- relative to pleas of payment; see Rev. Code, 118,119, sec. 61'.
    The intestate and defendant’s being joint owners oí the cotton at the gin, did not constitute such a partnership as required the defendant to resort to a court of equity; and all other matters relative to the crop, appear by the plaintiff'1 s declaration to have been settled in January previous_ When the intestate converted this cotton iDto money, the joint ownership ceased, and the defendant has a legal right to one fourth part of the: money.
    If a third person had taken and converted the cotton into money, the defendant could have sued for his share at law. Defendant might even have sued Mathie, in his life time, and therefore had a right to interpose this matter in defence.
    2. The courthelow ought to have given judgment on the demurrer hr favor of the defendant; for there is s.fatal variance between the proferí in the declaration and the oyer granted.
    That the plaintiff below was administrator is a material fact, without which he cannot recover. The craving of oyer, and the plea of ne unqueS administrator, informed and gave notice to the plaintiff that he would be required to prove it. The proof admitted of record evidence, and as plaintiff has chose to make that proof a part of his declaration, the insufficiency of it may he taken advantage of by demurrer.
    But if the court should not think this the proper mode to take advantage of the defect, they will find the point reserved in another form in the second hill of exceptions.
    
    The record produced is no proof of the plaintiff’s being administrator. It does not show that letters of administration were ever granted. The plaintiff only shows an order to grant them, and an approval of the court of the securities; but does not show that they were granted; nor does the plaintiff show that the administration bond was ever executed, or that he ever accepted the trust, or was ever qualified, as the letters themselves, oí-an exemplification of them would have shown, had they been produced; see form of letters of administration; see also form of bond and oath — Revised Code, page 39, sec. 39; see also Rev. Code, page 37, sec. 33.
    The first part of section 39 requires the bond to be given and the oath to betaken before the letters issue.
    The proof offered by the plaintiff was not such as is required by law, in cases of this kind. It is not the best evidence the case admitted of ;^2 Starkie Ev., by Metcalf, ñ53; 1 Phillips’ Evidence, [176] — chap. 7, section VI.
    3. The court below also erred in letting the transcripts of the "orphans’ court be read to the jury, and also in charging the jury on the weight and sufficiency of evidence; thereby muzzling the jury, and not allowing them the liberty to think for themselves; Rev. Code, 137, sec. 144.
   OPINION OF THE COURT — by the

Hon. Chief Justice TURNER

William Balfour brought this suit as the administrator of James Mathie deceeased, on a prommissory note made by Parker Carradine, payable to said Mathie. The defendant, Carradine, craved oyer of the letters of administration, of which' profert was made by the plaintiff in his declaration, and the plaintiff read to him an order of the orphans’ court of Madison county, in the following words, to wit: “ordered by the court that William Balfour have letters of administration on the estate of James Ma,-thie, deceased; William Gartley and William L. Balfour be approved of as securities.”

Whereupon the defendant below demurred, and assigned special causes of demurrer; the first of which being in substance that the order of the orphans’ court aforesaid was not “letters of administration,” and the plain-tiffjoined in demurrer. The court overruled the demurrer, and the defendant had leave, on cause shown, to plead to the merits, which he did, and there was verdict and judgment for the plaintiff below.

It is very clear, to my mind, that the order appointing an administrator, is a very different thing from “the letters of administration.” It is equally clear that defendant had a right to the oyer ofthe letters, and not being given, the plaintiff could not legally proceed with his cause. The demurrer, for this reason, should have been sustained.

It is unnecssary to notice the other errors assigned.

The judgment of the court below must be reversed; and this court, proceeding to give such judgment as the court below should have rendered, it is considered that the demurrer to the plaintiff’s declaration and oyer he sustained, with leave to the plaintiff below to amend, and cause remanded for further proceedings. It is further ordered that defendant in error pay the costs of this suit, and all the costs in the court below which accrued subsequent to the filing of the declaration.  