
    Kline against Low.
    ALBANY,
    Jan. 1814.
    K. subscribed to a work to Be published bers;V?Uthe befotí au'the numbers were Msadministraco'mpieteTthe numbers, and sent them to K.whorefused payfor'themt it was held tract having tedhvCfhePadk! wasíound tó pay for the numbers so delivered by deatifof L.e
    in ERROR, on certiorari, from a justice’s court. Low sued ... „ , , Mine before the justice, for 46 numbers of a book, at 25 cents' each, and a book of plates, at two dollars, amounting to 14 dolkirs and 25 cents. It appeared that the husband of the plaintiff, in his lifetime, issued proposals for publishing by subscription a new and complete encyclopedia, to be comprised in 120 numhers, or six volumes quarto, each number to be accompanied witli one or more plates, &c. A note of hand ivas to be given • r , 7 with the 10th number to each subscriber, engaging to deliver the surplus numbers, if any, gratis, The defendant was one of y^ subscribers to the work, and had received 92 numbers, being all that were published in the lifetime of the intestate, and had paid for the same. The subscription paper containing the name °f the defendant was proved to be lost or mislaid, and the con¿-ents were testified to by a witness. The plaintiff administered or. x v r the estate of her husband, who died the 2pd of May% 1806. After the death of her husband, she published, at her own expense, for the benefit of the subscribers, 49 numbers, which were necessary for the completion of the work, making in the whole 141 numbers. None of the 49 numbers, published by her, were offered, to the defendant until about three weeks before the trial of the cause, when the whole of them, with the book of extra plates, were left at the house of the defendant in his absence, and he, afterwards, on being called upon for that purpose, refused to pay for them, and desired the witness to take them back. The note of hand for the surplus numbers,, mentioned as one of the terms of subscription, though called for, was not produced by the defendant, who said he claimed none of those numbers. The defendant moved for a nonsuit; 1. On the ground that there was no evidence of any contract, express or implied, between the plaintiff and defendant; 2. If any such contract did exist, it was within the statute of frauds; 3. That if the evidence-showed a contract made with the husband of the plaintiff in his lifetime, then the plaintiff ought to have sued, or declared in Ixsr representative character, as administratrix; 4. That the written contract spoken of by the witness ought to have been complied with; 5. That the terms of the subscription had been fulfilled by the plaintiff or the intestate; 6. That the defendant could not be liable for the 21 surplus numbers and book of plates. The court below oveiTuIed all these objections, and gave judgment for the plaintiff, for the 14 dollars and 25. cents.
    The cause was submitted to the court without argument.
   Per Curiam.

The demand of the plaintiff below for all, except the surplus numbers, was valid; as she, being administratrix, went on, after the death of her husband, and completed the contract. The surplus numbers were not within the contract, and as the justice expressly allowed that part of the demand, amounting to more than one half of the sum recovered, there is too great an excess in the recovery to be overlooked, especially as it was made a point before the justice. The judgment below must, for that reason, be reverse^.

Judgment reversed.  