The genuineness of the note sued on, was a question for the jury. The evidence was conflicting, it is true, and there were facts in testimony calculated to impress us with strong suspicions that the note had been altered in the amount; but situated as this case is, it appears to us that it would be violative of well settled principles and duty for us to interfere because of such suspicions.
The Judge before whom the cause was tried, appears to have been satisfied, if not with the correctness, with the legality of the finding, having refused the application for a new trial. We perceive, no error of law in such refusal. It was urged before us that unless a new trial was granted here a personal liability would be fixed on the executor as the estate represented would prove insolvent. Such a result' *240will not be the fault of the law, but from not defending in the mode required by law, from the negligence of the executor, in not pleading to the suit on the note at the proper time and in proper form, the condition of the estate.
Why, when sued, did not the executor file his plea of pleno administravii? Why not the plea of non estfactum? if he actually believed that the note sued on had been altered materially in amount, so that the onus of the proof of the genuineness of the note in its present condition might be cast on the plaintiff below ?
The consequences apprehended are the necessary sequences, from such antecedents. The law rightfully assists the vigilant, but looks with no tenderness on the claim for assistance •to him who, in the last hour, has become remediless by his own inaction.
Inaction, standing still with folded arms, will be found in general by those who trust to its efficacy, “no antidote for the ills that flesh is heir to.”
J udgment affirmed.