Liening v. Gould

<p>Appeal from the County Court, Colusa County.</p> <p>Suit in a Justice’s Court by plaintiff, as Public Administrator, on a note of defendant to one Kurtz, deceased.</p> <p>The complaint sets out the note, avers plaintiff to be administrator in fact of the estate of John Kurtz, deceased, and that defendant has promised to pay, etc.</p> <p>Defendant answered by claiming that deceased bad made him a gift of the note, had agreed to extend the time of payment to the fall of 1858, this suit having been brought in May, and plead a set-off of thirty-five dollars.</p> <p>The Justice gave plaintiff judgment for the amount of the note and interest, less the thirty-five dollars. Defendant appealed to the County Court, where plaintiff had verdict and judgment for the whole note.</p> <p>Defendant asked the Court to instruct the jury “ as in case of nonsuit,” because plaintiff had failed to make profert of his letters of administration. The Court refused, and defendant excepted. Defendant appeals.</p>