Stevens v. Bradley. by the defendant to the plaintiff were within the power and control of the plaintiff to be surrendered up and canceled, and have not been transfered, then the rights of the plaintiff are not to prejudiced, if he is entitled to recover on the evidence, by a failure to tender them to the defendant at this moment. The defendant's counsel requested the court to instruct the jury as follows, which the court refused to do: "That unless the jury believe, from the evidence, that the notes given to Bradley by Stevens were delivered back to Stevens before the commencement of this suit, then they will find for the defendant. "That unless the jury believe, from the evidence, that the notes made by Stevens and delivered to Bradley, were delivered or tendered to Stevens before or at the trial of this cause, they will find for the defendant. "That if the jury believe, from the evidence, that the plaintiff in this case, transferred or parted with the notes, they will find for the defendant." The jury found for the plaintiff and assessed his damages at one thousand nine hundred fifty-one dollars and fifty-three cents. The defendant's counsel thereupon moved the court for a new trial, which motion the court overruled. The defendant prayed this appeal. SCATES, MCALLISTER & JEWETT, for Appellant. MATHER and TAFT, for Appellee. WALKER, J. The appellant urges a reversal of the judgment in this case, because he was not in default when the suit was instituted. The evidence shows that appellee sold to appellant a stock of merchandise and received as a portion of the consideration real estate, and was to receive the balance in notes, with Tucker as security, due at different times, from two to ten months from the date of the sale. But by some subsequent arrangement, he received appellant's notes for the amount, to be held until the others were procured. Porter testified, at the time of the purchase it was agreeed that the notes were to be given, with Tucker as security, within a week from that time. Thomas testifies, that appellant was to give Tucker's notes indorsed by himself, and that he stated, that he expected to receive them by the time the invoice was completed. But that the notes were not received until after appellant had gone to New York, and about the 7th of January, and that witness showed them to appellec, and asked if he should send them to Stevens v. Bradley. New York for appellant's indorsement, when appellee said that when appellant left it was arranged that he should indorse them on his return; and appellee also stated that the notes were satisfactory, and he then received them. Appellee also informed the witness that before appellant left he had executed his notes, which he was to hold until the others were arranged, and the witness learned from him that these notes were in bank. This witness also testifies, that when appellant returned from New York he said to appellee that he was ready to do as he agreed, as to giving his indorsement on Tucker's notes, and taking up his own. That appellee said but little on that occasion. It does not appear that any of these notes were returned before or at the trial. The evidence of this witness is uncon tradicted and he stands unimpeached. Whatever may have been the first arrangement between the parties, we think it evident that, when appellee received the notes of appellant he then was to hold them until appellant's return from New York, when these notes were to be exchanged for those of Tucker indorsed by appellant. And when appellant offered to indorse them, he had fully performed his part of the agreement. If such had not been the arrangement, it is unaccountable why he should have expressed satisfaction with, and why he received Tucker's notes. It is also a pregnant fact, that the notes of appellant were placed in the bank for collection by Hunt, who must have received them from appellee. We are at a loss to perceive any, even the slightest grounds to insist upon a recovery, when he was holding the notes of Tucker for the amount of his claim, and had parted with the notes of appellant, for the same amount, to Hunt, who had placed them in the bank for collection. He knowingly and understandingly accepted Tucker's notes, and although it may have been after the day, and the notes may not have been in the form previously agreed upon, by the acceptance, he waived the right of objecting to the notes as not being in compliance with the contract. He should have refused to receive them-but neglecting to do so he cannot be heard to say the appellant has failed to perform his part of the agreement, or that the notes are insufficient. Even if the appellant had failed to comply on his part, a recovery could not be had for the balance of the price of the goods, without a surrender and cancellation of these notes. It might have been sufficient to have done so on the trial before the case was submitted to the jury; but that was not done, and having failed to do so, the court should have excluded the appellee's evidence on the motion made for that purpose. Nor has the error been cured by surrendering them in court after the jury had returned their verdict. Harris v. Johnston, 3 Cranch, 22 248 45a 465 Comstock v. Ward. 311. The notes in this case, when the action was brought and until the first trial in this case, were in the hands of Swift, a banker, and deposited there by Hunt for collection. They do not appear to have been under the power or control of appellee, but rather under that of Hunt, but whether he held them by indorsement or as collateral security does not appear from the evidence. The evidence therefore did not warrant the giving the plaintiff's third instruction. And the instructions that in case the jury found for the plaintiff that they should give interest from the date of the sale were erroneous, as this was a sale on credit, and until the time of the credit expired, no interest was chargeable, even if the appellee had a right to maintain this action. The judgment of the court below must be reversed and the cause remanded for further proceedings. Judgment reversed. GARDNER P. COMSTOCK, Appellant, v. JULIUS WARD, Appellee. APPEAL FROM KANKAKEE. A verbal contract, not to be performed within a year, will not sustain an action. The statute of frauds, etc., is presumed to have been pleaded in an action before a justice of the peace. THIS was an appeal from a justice, commenced November 3rd, 1858. Justice's transcript shows that suit was brought on book account for $100. Verdict in Circuit Court, $70, for plaintiff; motion for new trial overruled, and judgment upon the verdict. The suit was brought to recover for work and labor, wood, rails, posts, hay, and damages for the breach of a contract for letting forty acres of land by defendant to plaintiff. Alexander Ward testified, that he was brother of plaintiff, and that plaintiff and defendant stated over the contract to him in relation to defendant's letting plaintiff said land, and that it was as follows: that defendant was to let plaintiff have the land for one year on shares, the plaintiff to do all labor, and give onehalf the crops to defendant; would have house empty as soon as he could get family out that was then in the house; the year for which the land was let, was to commence running from the Granjang v. Merkle. time plaintiff moved into the house, which it was expected would be about a week; contract took place about fore part of August, 1858; family in the house did not move out for several weeks after making of contract, and not until Comstock sold the land. Drawing the posts, rails, hay and wood on to the land, was all done in pursuance of the contract. Witness knows of no claims of plaintiff, except those growing out of the contract. The contract was an oral one; there were no writings connected with it. Defendant asked the court to give the following, among other instructions, to the jury: 3. If the jury believe, from the evidence, that the full completion of the contract sued on was not to be performed within the space of one year from the making of such contract, then no action can be maintained on such contract, unless some writing was made and signed by the party to be charged therewith, upon which the action was brought. If the plaintiff has proved no demand except such as depended upon a parol contract not to be performed within a year, he cannot recover upon them, and the law is for the defendant. The court refused to give the said instruction, and defendant excepted. B. C. Cook, for Appellant. W. K. MCALLISTER, for Appellee. BREESE, J. This action was commenced before a justice, and tried on appeal de novo, in the Circuit Court. We are satisfied the contract proved was in relation to an interest in land, and was not to be performed within one year from the time of making it, and therefore the third instruction asked by the defendant should have been given, as it does substantially declare the law of the case. In a justice's court, it is presumed the statute is pleaded. Judgment reversed. NICHOLAS GRANJANG, Plaintiff in Error, v. MARGARET ERROR TO COOK. To recover costs in an action against an executor or administrator, there should be proof of a compliance with the requisitions of the statute in that regard. Averments to that effect need not be made in the declaration. Granjang v. Merkle. A court of general jurisdiction will be presumed to have acted upon the necessary evidence. If an administrator is sued before the expiration of the year, he can plead the fact; the declaration need not make the averment that a year has lapsed. Execution should not be awarded against administrators. THIS was an action of assumpsit by an administratrix against an executor. The plea was the general issue. There was a trial and judgment for Merkle as administratrix, against Granjang as executor. The judgment was for $236.25 and costs, with an award of execution against Granjang, as executor. A. WINDETT, for Plaintiff in Error. NISSEN & BURGESS, for Defendant in Error. WALKER, J. It is insisted that to entitle a plaintiff to recover his costs against an executor or administrator, there should be an averment in the declaration that the claim sued for had been presented in proper time for allowance in the Probate Court, and that a demand had been made for the debt before suit was brought. In support of this position, some portion of our statute of Wills has been referred to. The 95th section, page 557, R. S. 1845, requires executors and administrators to fix upon some term of the Probate Court, within nine months after obtaining letters, for the settlement and adjustment of all claims against the estate of decedent; and it enacts in a proviso, "That estates shall be answerable for the costs on the claims filed at or before said term, but not after." And the 101st section provides that, "No action shall be maintainable against any executor or administrator for any debt due from the testator or intestate, until the expiration of one year after the taking out of letters testamentary or administration, except as herein excepted; nor shall any person suing after that time, recover costs against such executor or administrator, unless a demand be proved before the commencement of such suit; but in all other cases, both executors and administrators shall be liable to pay costs, as other persons." It is believed that these are the only provisions of our statute having any bearing on this question; and they only entitle plaintiffs to recover costs against executors and administrators, upon a compliance with these provisions. At common law, neither plaintiffs nor defendants were entitled to recover costs. The whole question of costs in courts of law, is regulated and governed by statute. But since costs were given by statute, the form of the pleadings has remained the same as before, they do not aver that the party is entitled to or prays judgment for costs; but courts have always treated them as incident to the |