majority">Per Curiam.

Suit by heirs against an administrator to recover for misapplication of effects. Answer. Reply. Trial by jury; verdict and judgment for the plaintiffs for 200 dollars.

A motion for a new trial was made and overruled. The causes assigned for a new trial were—

1. The verdict is contrary to evidence.

2. It is contrary to law.

3. The Court erred in refusing to permit the defendant to give in evidence the record and answer of the guardian ad litem, in the application for the sale of the tract of land referred to in the complaint.

4. The answer denies the bill under oath, which made it necessary that the bill should be sustained by two witnesses.

The first two causes assigned will be no further noticed than to say, that from a perusal of the evidence it does not appear very certain that the verdict was contrary to evidence; and that the point as to its being contrary to law depends upon the decision upon the third and fourth grounds assumed for the new trial.

The fourth ground is not true in point of fact. The answer, as amended and filed finally, as containing the ground relied on in defense, does not appear to have been sworn to. Nor does it charge any ruling of the Court as having been erroneous, in reference to it, supposing it had been. And by the statute of 1852, under which it was filed, it would not have the effect claimed for it, if it had been sworn to.

As to the third ground, the record, except the guardian’s answer, was in evidence. The answer would not have been evidence against the heirs had it been in evidence. And, further, it does not appear by the record that it was offered in evidence.

J. Brownlee, A. Steele, and H. D. Thompson, for the appellant.J. M. Wallace and H. S. Kelly for the appellees.

The judgment is affirmed, with 5 per cent, damages and costs.

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