CASES DECIDED IN THE SUPREME COURT OF APPEALS OF VIRGINIA. Lewisburg. MINOR V. MINOR's adm'r. (Absent Cabell, P.) July 12th. 1. In an action of assumpsit by an adm'r for a debt due his intestate in his lifetime, defendant cannot set off a debt due him for money paid as the surety of the intestate since his death. 2. The count in an action of assumpsit by an adm'r is for money had and received, and the bill of particulars merely states an account in which the defendant is debtor to the adm'r for money received, stating a sum certain. The count and the bill of particulars are not sufficient to admit proof of an admission by the defendant that he had received from a third person a certain sum belonging to the estate of the plaintiff's intestate. This was an action of assumpsit brought in the Circuit court of Monongalia county by A. W. Tenant, adm'r of John Minor, against Samuel Minor. The declaration contained two counts for money had and received; the first for money had and received to the use. VOL. VIII.-1 1851. July Term. 1851. July Term. Minor V. Minor's adm'r. of the plaintiff's intestate in his lifetime, the other for money had and received to the use of the plaintiff, as administrator of John Minor. The bill of particulars filed with the declaration was: Samuel Minor, To John Minor, for money received, Samuel Minor, $300 $300 To plaintiff as adm'r, for money received, The defendant appeared and pleaded the general issue, and also a plea of set off to the first count, and the statute of limitations, on which issues were made up. He also offered a plea to the second count of the declaration, which is called the defendant's third plea, in which he alleged that the plaintiff, as the administrator of John Minor deceased, before and at the commencement of the action, was indebted to the defendant in the sum of 1500 dollars, for money by the defendant paid as the security of John Minor, since his death, which exceeded the damages complained of in the declaration, and out of which money the defendant was willing and offered to set off and allow to the plaintiff, as administrator as aforesaid, the full amount of the said damages. This plea the plaintiff moved the court to reject, which motion the court sustained, and the defendant excepted. On the trial of the cause the plaintiff offered evidence. tending to prove that the defendant admitted in March 1846, that he received from one Lancaster Minor, in the spring of that year, 250 dollars belonging to the estate of John Minor deceased, the plaintiff's intestate; to the introduction of which evidence the defendant objected, upon the ground that neither the declaration nor the bill of particulars filed therewith gave to the defendant sufficient notice of any such claim. But the court overruled the objection and admitted the evidence; and the defendant again excepted. There was a verdict and judgment for the plaintiff for 250 dollars, with interest from the 31st of March 1846; whereupon the defendant applied to this court for a supersedeas, which was allowed. A. F. Haymond, for the appellant. 1851. July Term. Minor V. Minor's adm'r. Guy R. C. Allen, for the appellee. ALLEN, J. delivered the opinion of the court. It seems to the court here, that the Circuit court did not err in rejecting the plea No. 3, tendered by the plaintiff in error, and set forth in the bill of exceptions taken to the decision of the court rejecting the same. But it further seems to the court here, that the court erred in overruling the objection of the plaintiff in error to the introduction of evidence offered by the defendant in error, as tending to prove the particular item or claim sought to be recovered, as set forth in the bill of exceptions taken by the plaintiff in error at the trial to the decision of the court admitting said testimony; this court being of opinion that neither the declaration or bill of particulars gave the plaintiff in error sufficient notice of any such claim or item. Reversed with costs, verdict set aside, and cause remanded for a new trial, upon which, under the pleadings as they now stand, and unless another bill of particulars be filed describing the claim or item with sufficient certainty, such evidence offered and objected to is not to be admitted. Where several endorsers of negotiable paper have endorsed it for the accommodation of the maker, they are responsible in the order of their endorsements, unless there has been an agreement among them to be jointly and equally bound: And the burden of proving such an agreement is upon the prior endorser who seeks the benefit of it. This was a motion in the Circuit court of Monongalia county by James T. Davis, Waitman Davis and three others, against Bushrod Q. Hogue, to recover from him the amount which they had been compelled to pay as subsequent endorsers upon a note made by Robert Davis to Bushrod Q. Hogue, and discounted at the bank in Morgantown. The note bore date July 29th, 1844, and was for 2500 dollars, payable in ninety days, at the Lancaster Bank, in the State of Pennsylvania, and was endorsed by all the parties for the accommodation of Robert Davis. Before the note fell due Robert Davis absconded. The ground of defence was, that all the endorsers were to be jointly and equally bound. The only witnesses who spoke to the making of the note were John Davis, a brother of two of the plaintiffs, and Albert G. Davis, a cousin. According to their testimony Hogue boarded with Robert Davis, and endorsed the note at Davis's house, in the absence of the other endorsers; and Robert Davis then took the note to obtain other endorsers upon it. That he applied to his father, Thomas Davis, to endorse it, who declined to do it, when Robert Davis told him there was no danger, as both he and Hogue |