Motion fob New Trial—Effect of Exceptions Pendente Lite—Account Stated with Executor—Effect.
1. Upon the hearing of the motion for a new trial, the court had no authority to consider exceptions pendente lite filed by the defendant, assigning as error the striking of certain pleas, there being in the motion no complaint that the court erred in striking the pleas.
2. The only ground of the motion for a new trial being that the verdict was contrary to law and evidence, and it appearing that the evidence demanded the verdict, the court erred In granting a new trial.
3. On consideration of the exceptions pendente lite filed by the defendant, upon which error was assigned here, it is ruled that where the defendant gave a promissory note to the plaintiff's testator in his lifetime, and after his death, upon an accounting and settlement between the defendant and the executor, a new note was given in renewal of the former one, the defendant, when sued upon the last note, could not set up in a plea of payment alleged credits which ought to have been upon the first note, and of which the defendant necessarily must have had knowledge; the pleas alleging no conduct or representations on the part of the executor, in procuring the new note, amounting to fraud, nor setting up any facts showing that in giving the new note anything was said or done by which the defendant should have been deceived or misled.
(Syllabus by the Court.)
Error from superior court, Hancock county; H. McWhorter, Judge.
Action by D. L. Turner and others, executors, against Stephen E. Pearson. A verdict was returned for plaintiffs, a new trial granted, and plaintiffs bring error. Reversed. Judgment on exceptions pendente lite affirmed.
Following is the official report:
The stricken plea was as follows: "The note sued on was given by defendant to plaintiff under the following circumstances, to wit: That about the year 1869 defendant, being indebted to various parties, made application to said Thomas M. Turner, plaintiff's testator, who had previously proposed his assistance, for financial aid to pay off and discharge such indebtedness. This the said Turner agreed to do, taking as his security therefor a transfer from the creditors of the fi. fas. or other evidences of Indebtedness against this defendant held by them, and taking also from the defendant his promissory note for the amount represented by him to have been paid for such evidences of indebtedness against this defendant; it being expressly understood and agreed between said testator and this defendant that he was to remain In possession, control, and ownership of the property then owned by him, and to pay off, as he might be able, the indebtedness thus contractedwith said testator, said testator entering then and there into a written agreement never to enforce said fi. fa. or fi. fas. or other evidences of debt against him, but to hold them for his protection. The only real liability of this defendant not by this agreement canceled or liquidated was the note given as aforesaid. Nevertheless, and notwithstanding said executions were paid off as aforesaid, and said note given in consideration thereof, said testator caused the lands of this defendant to be levied on and exposed to sale under one or more of said fi. fas. which had been issued against the estate of this defendant's father, Stephen Pearson, who departed this life about the year 1854, being wholly free from any indebtedness at the time of his death, and purchased said lands, taking the sheriff's deed thereto, but having never entered into possession thereof, contracting and agreeing with the defendant that this defendant should continue to remain in the possession, control, and ownership of the same just as though no such ostensible sale had been made, and that the previous agreement made concerning said ownership and possession should remain of force, neither the value of said property nor the amount of said testator's bid being credited on said notes. This defendant sold off various parts of said lands, the proceeds of said sales being paid to said testator, he, by consent of parties, making deeds or titles to the purchasers thereof, and agreeing to credit said note with the proceeds thereof, which credits, had they been properly made according to agreement, would...
