This was an action in assumpsit, to recover for work and labor done for the defendant's intestate. The defendant pleaded the general issue, fully administered, and the act for the (136) protection of administrators. The plaintiff having proved his cause of action, the defendant showed that he took out letters of administration upon the estate of his intestate at May Term, 1842, of Craven County Court, and also proved that within two months thereafter he caused an advertisement for the creditors to present their claims for payment to be posted up at the door of the courthouse of Craven County, also at the county wharf in New Bern. Copies of these advertisements, properly proved, were produced to the court held for the county of Craven at its August Sessions, 1842, and ordered to be filed. He then offered in evidence the copy of another advertisement, similar to the other two, upon which was the affidavit of one Green, made at the November Term, 1842, of Craven County *Page 103 Court, and which had been ordered by the County Court to be filed with the records. This latter evidence was ruled out by the court. The defendant then offered to prove by one Stephenson that he had seen an advertisement, signed by the administrator of John Patrick, notifying the creditors to present their claims, but in what year or month he could not tell. This testimony was rejected. For the purpose of refreshing the memory of Stephenson as to the time, the defendant proposed that he should look at the copy certified by Green; this the court refused.
The cause had been referred to James G. Stanly, who made a report, which, not being excepted to by either party, had been confirmed by the court. The commissioner, in stating the debit and credit side of the administrator's account, strikes a balance of $930 as the amount of assets in the defendant's hand. He goes on, however, and states that the defendant claims to retain that balance to satisfy the following sums, etc., 3 August, 1844, namely, at "May Term, 1843, of Greene County Court, by J. M. Patrick, by his guardian, Willis Dixon, judgment quando against Ed. Patrick, administrator of John Patrick, $1,281. 88 1/2." The defendant's counsel contended that by (137) the commissioner's account and report the defendant had fully administered, and that the balance of the assets, as stated in the body of the account, was subject to the payment of the judgment quando against him, in preference to the plaintiff's demand, and requested the court so to charge the jury. The court instructed the jury that it appeared from the report that there was a balance of assets in the hands of the defendant sufficient to satisfy the plaintiff's demand; that it was incumbent on the defendant to show the existence of the judgmentquando by producing a copy of the record, and as he had failed to do so, they might find for the plaintiff, if he had established his claim to their satisfaction.
There was a verdict for the plaintiff, and from the judgment on that verdict the defendant appealed. Section 16, ch. 46, Rev. St., requires executors and administrators, within two months after their qualification, to advertise creditors to bring in their claims within the time prescribed by law, and requires that the advertisement shall be made at the courthouse door and other public places. Section 17 provides the manner in which the evidence to prove the fact may be perpetuated. The defendant in this case proved the *Page 104 advertisement at the courthouse door and one public place, and the evidence to show it had been made at a second was insufficient under the act. The notice, certified by Green, was not filed in the office at August Term of the court, which was the term next succeeding the qualifying of the defendant, as required by the act, but at the November Term succeeding. Neither, as (138) far as the case discloses, did the affidavit of the witness Green, on the notice, show at what time he saw it posted up, nor where. The testimony of Mr. Stephenson was equally uncertain as to time; the nearest he could come to it was that he saw the advertisement posted up at his house, which was a public place within the county, within six or twelve months after the death of the intestate. The defendant failed to show a compliance with the requisitions of the act, and was thrown back upon his right to prove the fact in some other way. The court committed no error in rejecting the evidence he did offer. The provision in section 17 is obviously made for the ease and security of the administrator, and a strict performance ought to be and has been required of him. McLin v. McNamara,22 N.C. 82.
For the purpose of refreshing the memory of the witness Stephenson the defendant proposed to show him the notice certified by Green, which was refused by the court. If the court erred in rejecting the testimony, we cannot reverse the judgment for that reason, as the case does not set forth the notice, so as to enable us to see that its contents were such as were calculated to have the effect proposed. It was not suggested to the court in what way the notice could refresh the memory of the witness as to the time he saw the notice which he speaks of, nor can we perceive its relation to it. Burroughs v. Martin, 2 Camp., 112.
In the progress of the trial a reference was made by the parties to Mr. James Stanly, to take an account of the defendant's administration of the assets of the intestate. The commissioner made his report, which was confirmed by the court, neither party having made any exception. The referee, after stating the receipts and disbursements of the defendant, reports that there were assets in his hands to the amount of $930.31, a sum more than sufficient to satisfy the plaintiff's debt. But (139) he goes on and states that the defendant claims to retain that balance to pay certain sums due to him from his intestate, and to pay an unsatisfied judgment quando rendered against him as administrator of Ed. Patrick, at May Term, 1843, of Greene County Court, at the instance of John M. Patrick, by his guardian, Willis Dixon, for the sum of $1,281.88 1/2. The defendant's counsel requested the court to charge the jury, *Page 105 as set forth in the case, that the defendant had a right to retain the amount reported as in his hands to pay the quando judgment. This was refused upon the ground that the defendant had not produced the record of the judgment. In this we are of opinion his Honor erred. The reference to Mr. Stanly was not a matter of right belonging to either of the parties, the action not being on the administrator's bond, but was made by them as a satisfactory and expeditions mode of ascertaining the state of the assets.
We are of opinion that, as the plaintiff used the report to charge the defendant, the latter was entitled to use it to his discharge, and that his Honor erred in refusing the instructions prayed for. The plaintiff gave no other evidence of assets, and the question turned upon the construction of the report. That we understand clearly reports standing demands, preferable to the plaintiff's to a greater amount than the balance of $930.31. For it refers to certain depositions and records, establishing certain demands to the amount of $837.81 1/2 against the estate in favor of the defendant.
PER CURIAM. Judgment reversed, and a venire de novo ordered.
Cited: S. v. Pierce, 91 N.C. 609.
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