Mineral Point Railroad Co. v. Keep. that he made full notes of his testimony at the time, and that they are correct, we see no reason why he should not read them to the jury, as the best evidence of the fact to which he is called to depose. In the case of the Mayor of Doncaster v. Day, 3 Taunton, 261, Mansfield, C. J., said, what the former witness swore may be given in evidence, either from the judge's notes, or from notes that have been taken by any other person, who will swear to their accuracy-or the former evidence may be proved by any person who will swear, from his memory, to its having been given. In Miles v. O'Hara, 4 Binney, 108, it was held that a copy of the judge's notes of the testimony of a deceased witness were not evidence, though certified by him to be correct, but they would be, if with his oath. In Cornell et al. v. Green, Adm'r, 10 Serg. and Rawle, 14, after the plaintiff had opened his rebutting evidence, he offered Mr. Fisher who was of counsel in the cause, to prove what had been sworn on a former trial by a witness since deceased. On being examined as to the state of his recollection, he testified that from having been consulted before the suit was instituted, and having directed to be done what the witness in the former trial swore was done, as well from frequently having recurred to his notes of the witness' testimony, as from conversations with him before the trial came on, he had a perfect recollection of what the witness swore-that he would not, however, pretend to say without a previous knowledge of all these facts, what the witness did or did not swear-that he is in the habit of taking down the very words of a witness, and not the substance of his testimony; and that to the best of his knowledge, his notes contain every word said by the witness on the occasion; and added, that conversant as he was with the cause, without frequently recurring to his notes, he would not undertake to state every word said by the witness, but that the material part of what he had said, he could state without recurring to his notes. The court held he was properly admitted to testify, taking strong grounds against the unreasonableness of the old English rule, requiring the very words to be given. In the course of the opinion, Gibson, J., says: "It seems, however, singular that instead of trusting to Mr. Fisher's recollection, the plaintiff did not offer his notes in evidence, against which, when properly authenticated, there could be no sort of objection." To the same effect is Chess v. Chess, 17 Serg. and Rawle, 409. In this case, the court say, if the notes on one side are not fully trusted, what more obvious correction than to have the notes on the other side produced and sworn to, if they can be Mineral Point Railroad Co. v. Keep. sworn to, or the notes of the judge, or recourse had to the memory of jurors or other persons present, if it shall be insisted that memory is safer than writing. In Ballinger v. Barnes, 3 Devereux (N. C.) 460, the course here recommended was pursued, the result of examinations on both sides going to the jury. This practice was approved by the court. We think, written notes made by the counsel for one of the parties in the cause, and sworn to be correct, are more reliable than testimony resting in memory merely, tinged, as those notes may be, by the prejudices of the counsel taking them, being open to correction by the judge's notes, or those of others. As to the objection that the letter of the plaintiff below to the president of the company, was permitted to go in evidence, it will be seen by the second instruction asked by the defendants below, and given by the court, the jury were specially instructed to disregard all that part of it, which alleged the non-payment of the monthly estimates, as the reason for abandoning the contract. For all other purposes, the letter was admissible as notice. The fourth instruction given on behalf of plaintiff below, states the law accurately on the point involved in it. The advances by the company to Holcomb, one of the sub-contractors under the plaintiff, could only be justified on the ground that the plaintiff was indebted to Holcomb at the time of making the advances, equal in amount to the money advanced. This limit of the authority to the company to make the advances, might well be imposed by the plaintiff, and it was for the jury to say if it was imposed. As to the rights of the parties who interpleaded, it is sufficient to say, they have not brought them before this court-they are not parties, in any sense, to this writ of error. The finding of the jury was after a full hearing of the evidence, the whole question of abandonment and the causes therefor being left to them, and we cannot say that they have so mistaken or disregarded the evidence, as to do injustice to the plaintiffs in error. The main ground of their verdict, may be found in the fact that the reserved fifteen per cent. was allowed the plaintiff, which of itself would amount to near ten thousand dollars. Perceiving no error in the record the judgment must be affirmed. Judgment affirmed. Peacock v. Haven, Adm'r, etc., et al. 22 23 JOSEPH PEACOCK, Appellant, v. SAMUEL R. HAVEN, Admin- 63 87 istrator, etc., et al., Appellees. APPEAL FROM COOK COUNTY COURT OF COMMON PLEAS. 22 23 165 128 22 23 82a 296 22 A party bringing suit against an administrator, or executor, is entitled to a judg. 191 ment, although his claim was not presented within two years, if it is not other wise barred. The judgment is to be satisfied in due course of administration of the estate inventoried, if the claim is presented within two years; if presented afterwards, then the judgment is to be satisfied out of subsequently discovered and inventoried estate. If instead of suing, a party having a claim against the estate, is sued by the representative of it, he can plead his claim by way of set-off, and if any balance is adjudged to him, it will be paid out of any estate thereafter discovered and inventoried. THIS was an action of assumpsit brought by the plaintiffs below, administrator and administratrix of Ephraim C. Stowell, deceased, for the recovery of the amount of two promissory notes alleged to have been given by the defendant below to the said Ephraim C. Stowell, in his lifetime, one of $166.66, bearing date January 21st, 1854, and the other of no date, of $83.33. The declaration consists of two special counts. The first count is upon the note first above mentioned, and the second is upon the second note. To this declaration the defendant pleaded two pleas. 1st. The general issue. 2nd. A plea of set-off in the usual form, alleging an indebtedness of the said Ephraim C. Stowell, in his lifetime and at the time of his death, to said defendant, in the sum of one thousand dollars, for work and labor, care, diligence and attendance of the said defendant by him and his servants, done and performed in and about the business of the said Ephraim C. Stowell, at his special instance and request, and for materials furnished said Stowell, and for goods, wares and merchandise sold and delivered to said Stowell by said defendant, and for money lent and advanced to, and money paid, laid out and expended for said Stowell; said defendant also filed with said plea of set-off, a bill of particulars of the same. To this plea of set-off, the plaintiffs filed two replications on special leave: 1st. The general replication of nil debet, traversing said plea of set-off. 2nd. A replication alleging "that administration of the goods and chattels, and right and credits, which were of the said Ephraim C. Stowell, deceased, was granted to them on the 10th day of April, A. D. 1855, at the said county of Cook, by the Cook County Court of said county, and that said supposed 23 2364 Peacock v. Haven, Adm'r, etc., et al. indebtedness from the said Ephraim C. Stowell, deceased, to said defendant, by the said defendant above pleaded in his second plea (plea of set-off,) was not exhibited to said County Court for adjudication, within two years from the granting of the letters of administration aforesaid, according to the form of the statute in such case made and provided." To this second replication to said plea of set-off, the said defendant filed a general demurrer, and the plaintiff joined in demurrer. The court overruled said demurrer and held said. second replication sufficient; the defendant stood by his demurrer; the said suit was thereupon, to wit: on the 22nd day of December, 1858, brought on for trial before said court, J. M. WILSON, Judge, presiding, and a jury. The plaintiffs introduced and read in evidence a note, of which the following is a copy: "$166.66. Two years after the fifteenth day of April next, for value received, I promise to pay E. C. Stowell or order, the sum of one hundred and sixty-six 66-100 dollars, at the Exchange Bank of H. A. Tucker & Co., Ill. JOSEPH PEACOCK." The plaintiffs gave no further or other testimony, except said note, and after entering a nolle prosequi as to the second count of their said declaration, rested their case; and the said defendant thereupon called as a witness James E. Roe, who being sworn, said defendant offered to prove by him his set-off which he had pleaded, to which offer said plaintiffs, by their counsel, objected; the said court then and there sustained said objection and rejected said offer, to which decision the said defendant then and there excepted. The defendant offering no further testimony, the case was submitted to the jury, who returned a verdict for the plaintiffs for one hundred and ninety-three dollars and forty-eight cents damages, and said defendant thereupon moved for a new trial, which motion the court overruled and the defendant excepted. Judgment was thereupon rendered against said defendant upon said verdict, and the defendant took an appeal to this court. The appellant assigns the following as grounds of error: 1st. The court erred in overruling said demurrer to said second replication to said plea of set-off, and deciding that said second replication is sufficient in law. 2nd. The court erred in rejecting said offer of said defendant to prove on trial his set-off, which he had pleaded. 3rd. The court erred in overruling said motion for a new trial. 4th. The verdict of said jury is against law and evidence. 5th. The judgment in this cause is erroneous, and contrary to law and evidence. Peacock v. Haven, Adm'r, etc., et al. GOODRICH, FARWELL & SMITH, for Appellant. C. HAVEN, for Appellees. BREESE, J. The demurrer of the appellant to second replication of the plaintiff below to the defendants' plea of set-off, presented this question for the decision of the court below: Does the 115th section of chapter 110 R. S., title "Wilis," (Scates' Comp. 1206) absolutely bar a claimant from all rights of recovery or set off, for the reason that he did not present his claim to the court for allowance, within two years from and after the grant of letters of administration? By sustaining the demurrer, the court decided it was an absolute bar and in this, erred. As we understand that section and as it has been construed by this court and as its plain language seems to import, a claim is not barred, if not presented within two years, but simply the right to claim a distributive share in, or any participation out of the property actually inventoried. Judy v. Kelly, 11 III. R. 211; Bradford v. Jones, 17 ib. 93. A plea of set-off is nothing more nor less than a cross action, and if in the action the claimant would not be barred of a recovery, so neither can he be barred from pleading his set-off. The principle is the same in such case, whether he be actor or reus, for it is the balance only which may be due from the one to the other, which constitutes the real claim for or against an estate. The debt in this case against the intestate was contracted in his lifetime, and to its extent, extinguished the debt due from the claimant to the intestate. The presentation of the claim to the administrator within the two years could only have the effect of notifying him there was such a claim against the estate, and enabling the claimant to share in the effects actually inventoried, but it would contribute in no degree to the validity of the claim. The ground on which the set-off is admitted is that to the extent of the claim presented as a set-off, if proved, there is a mutual extinguishment of the demands of the respective parties. The various provisions for the distribution of the estates of decedents, in our statute of " Wills," from section 95 to section 137, are for the purpose not only of liquidating the demands existing between the intestate and his creditors, at the time of his death, but for ascertaining balances. If the balance be against the estate it is to be so entered by the court that the condition of the estate may be known, and if insolvent that the creditor may receive his dividend. If the balance be against the creditor, there is no entry of that fact made by the court, for balances |