Hall v. Chenault

13 Ala. 710

Opinion

DARGAN, J.

It is very clear, that the circuit court erred in rendering judgment for the plaintiff below. In the trial of appeals, under $20, there are no pleadings made up, and all the evidence offered, is to be considered as offered under a proper state of pleadings; and if sufficient, under any state of correct pleadings, to defeat the plaintiff’s action, the court should not render judgment for the plaintiff. The residue due on the note from Johnson and the defendant in error to the plaintiff, was clearly a good off-set. It was given, it is true, to the plaintiff in error, as the administrator of Henry Hall, deceased; and this court has decided, that if a note is given to an administrator, on the sale of the property of his intestate, and he is afterwards removed from office as administrator, and another person is appointed administrator d& bonis non, that the. administrator in chief cannot sue on this-note. See Denham v. Grant, decided at the last term.

But in this case, the administrator had come to a final settlement with the orphans’ court, and had been charged with the full amount of this note by the decree, and he afterwards retained it as his own property. Under such circumstances, he could maintain a suit on it, and it was a good set-off.. Saying nothing about the $81 cost, the amount of this note, added to the $2, would have amounted to more than the plaintiff’s demand, and therefore the court erred in rendering, judgment for the plaintiff, in the court below.

Let the judgment be reversed, and the cause remanded.

Chilton, J., not sitting.