The 2d point raised by the bill of exceptions, is, that the plaintiff, by his counsel, moved the court to instruct the jury that said account, unsupported by any evidence, except that which appeared upon its face, and the endorsement thereon, was not final and conclusive; but the court overruled the motion, and instructed the jury, that said account, as between the parties to this suit, was final and conclusive; that the duty of the administrator ceased, the moment his account was allowed by the judge of the orphans' court; that the failure of the judge of probate to report his proceedings to the county court, could not prejudice the rights of the administrator, and that the legal presumption was, that the account had been so reported and acted on by the county court.

It is not necessary to decide the question whether the final account of an administrator, settled in the orphans' court, is final and conclusive, or not; because, in this case, the account is an imperfect one. It purports, on its face, to be the final settlement of the administrator and commissions to the amount of 159 dollars are allowed. By the act of 1824, page 107 the final account of an administrator must pass in review, before the county and probate court; and no commissions can be allowed the administrator, except by that court.

Again: This account shows disbursements, beyond the amount of the estate, and the plaintiff's claims are not paid, or noticed, although he, (the administrator,) had legal evidence of their existence against him. Neither is the estate declared insolvent; all of which, taken together, are conclusive evidence of a devastavit; 7 Cranch, 281; 4 Mumf., 252; 2 Hen. Mun., 251; 3 Harris & Johns., 251; 4 H. & M., 57; 2 Ser. & R. 518; 3 Bibb, 249; 5 Monroe, 61.

I am, therefore, clearly of opinion that the court below erred, in instructing the jury that the account was final and conclusive between the parties.

It also erred in instructing the jury that the presumption of law was, that the account had been acted on by the county and probate court, when the account itself rebutted that presumption: the judgment below must therefore be reversed, the cause remanded, and a venire de novo awarded.

The court are unanimous.

J. H. BARFIELD vs. KEARNEY.

To a declaration in debt for the penalty of a bond, with a condition, not set forth, nil debit is not a legal plea.

BRIEF OF R. W. WEBBER, ESQR.

The first, (so called,) is no plea; it has no conclusion whatever, and shows no reason why the plaintiff ought not to recover; a plea must set out facts, and ask for some judgment; Chitty, 536.

Each plea must be good in itself; one cannot be supported by the other, unless expressly referred to: they are as separate as if they were in distinct words; 1 T. R., 125; 1 Starkie Ev., 359, note 1; Chitty, 543, 481-2, note 1; Willis R., 380.

After craving oyer, and setting out the condition, the plea ought to have concluded with a verification; Chitty, 536, 7, 8.

Nil debit cannot be pleaded to a bond, but when matter in pais has to be alleged to support the action; Salk., 284, 565; 2 Ray.. 1503; Chitty, 477, 8; 1 Saund., 38, 51, note 3; 3 Saund., 187, note 2.

OPINION OF THE COURT-BY THE HON. CHIEF JUSTICE TURNER:

The plaintiff having declared in debt for the penalty of a bond with a condition, it was competent fer the defendants to crave oyer of the bond and condition,and to plead performance, which would have drawn forth the assignment of breaches of the condition in the plaintiff's replication. Or the plaintiff might, in the first instance, have set forth the condition, and assigned breaches in his declaration, and thereby have facilitated an issue on the merits.

The plaintiff has his election to adopt either mode of proceeding; but, in neither course, can the defendant sustain the plea of nil debit.

The bond, in the present case, is the foundation, and the breach of the condition the inducement to the action. In such cases, the authorities are clear and distinct that the plea of nil debet is not a legal plea; 1 Chitty's

Pleading 476, 477;2 Lord Raymond, 1500, Warren vt. Consett; 1 Saunders, 38, 51, note 3; 3 do., 187, note 2.

The case in Lord Raymond is a stronger case than the present. That was debt for the penalty in which the parties bound themselves to keep certain covenants contained in an indenture. The plea of nil debet was pleaded, demurred to, and the demurrer sustained.

The judgment must be reversed; and the court, proceeding to render such judgment as the court below should have rendered, it is ordered and adjudged that the demurrer to the plea of the defendant below be sustained, and a respondeat ouster awarded; and the cause remanded for further proceedings in the court below.

See revised code, page 117, sec. 55, as to the mode of assigning brea ches, on bonds, or for penal sums for the non performance of covenants, and agreements.

Judgments for costs against the appellee.

Judges Black, Cage and Montgomery concur in reversing the judgment -but judge Black was disinclined to approve of that part of the opinion which states "but in neither course, can the defendant sustain the plea of nil debit."

FREEMAN FORD vs. CELIA FORD.

Where a complainant, in a bill for a new trial at law, appears to have had a good defence, which he was prevented from making, or, moving for a continuance, or new trial, by accident unmixed with negligence, a new trial will be decreed.

BRIEF OF MESSRS. SMYTH, WEBBER, AND MARSH.

The bill prays for a new trial at law, on the ground that the verdict is unjust and oppressive, and that his defence was not there made, because of an accident to the horse of the attorney substituted for the attorney first by the complainant employed.

In order to set aside a verdict on bill for that purpose, there must be in

02

justice in the verdict, concurring with fraud in the complainant at law accident or mistake.

Dodge, et al. vs. Strong, 2 J. C. R., 230.

Foster and Wood, 6 J. C. Reports, 90.

1 Sch. & Lefroy's Rep. Bateman vs. Wilde.

3 Bibb's Reports, page 80.

The verdict is not unjust, because, from plaintiff's own showing, his defence was in the nature of an offset, and none being filed, nor pleaded, he has the same right of action for hire, as he would have had, before the trial.

The accident alleged is futile; a corn on the toe, or any other serious injury to his attorney, would be an equally sufficient accident to reverse the finding of a jury, and the judgment of a court.

It is further contended that the bill, and will, (a part thereof,) shows that the slave Simon belonged to Selah Ford, and his services were enjoyed by the defendant at law, Freeman Ford This fact authorized a recovery for hire, also the small negroes belonging to Freeman Ford, were in the possession of Selah Ford; they being too small to be of any service, but an expense, authorized a recovery for raising them, so that the jury was bound to assess damages upon every item of the account. This court cannot, therefore, conclude that the verdict is unjust, wiithout usurping the province of a jury, in assessing damages, and that, too, without evidence to form a criterion of such assessment.

Again: If the verdict was cleariy unjust, it could not be set aside by a bill in chancery for a new trial, unless the defendant was prevented from making his defence, by the fraud of the plaintiff, (which is not pretended in this case,) or by unavoidable accident, unmixed with blame or negligence on his part.

In the present case, the defendant at law does not account for his absence, or in any manner show that his absence was at all necessary: an important suit was depending against him, and at the previous term, he procured a continuance upon his affidavit; (see record filed as exhibit.)It is, then, clear that he deemed the suit an important one; and if he chose to rest his case entirely with his counsel, he must abide by such choice;otherwise, defendants may voluntarily absent themselves from the state,

or run away, and thereby delay creditors in the prosecution of their claims. It is either a voluntary abandonment of his defence, or laches.

First, then, the appellant, defendant at law, was guilty of negligence in not preparing his defence, and in not filing an account of offset, (if such defence existed.) See act of Assembly, revised code, page 118, section 61, and

Second-He was guilty of neglect, in not attending court and preparing his defence, by procuring the attendance of his witnesses, and seeing that they attended, as his presence, and not that of his attorney, was necessary to procure a continuance, (if necessary,) and is but ordinary and usual attention; see act of Assembly.

Third-It is the mere privilege of the party to appear by counsel, and it does not exempt him from the charge of neglect. The neglect of the attorney is the neglect of the party, and a new trial will not be granted for that cause; 3 Bibb's Rep., page 80.

Fourth-Courts of equity will not grant a new trial unless the verdict is unjust in toto, and obtained by fraud, the act of the adverse party, or unavoidable accident, unmixed with fault or blame, on the party applying; 6 Johnson, 89.

See 6 Johnson's Chancery Reports, page 90; 6 do., 479; 4 do., 566 3 do., 351; 2 do., 230; 1 do., 320.

OPINION OF THE COURT-BY THE HON. CHIEF JUSTICE TURNER Two grounds are laid by the complainant, Freeman Ford, in his bill, by which he seeks a new trial at law:

1. That the verdict at law, obtained against him by Celia Ford, is fraudulent, unjust and oppressive.

2. That the complainant was prevented from making his defence at law, by accident, unmixed with negligence.

The account filed is novel, on its face. It is very unusual to see a suit on an account for boarding slaves. They are generally considered an article of profit to the owner.

The item for negro hire is also a singular one. It would seem that Mrs. Ford hired to Freeman Ford a valuable negro man, for about nine years in succession, and no credit given for any part of the hire.