Writ of Error io the Circuit Court of Pulaski County.

This was an action of debt, brought by Ryan and Waldron, for tho use of Trapnall & Cocke, against Lemon as ad’r of Davinport, determined in the Pulaski circuit court, at the October term 1845j before Clenhenin, Judge.

The action was founded on a writing obligatory, for the payment of money, executed by defendant’s intestate to plaintiffs.

Defendant craved oyer of the obligation sued on, which was granted. He then filed two pleas, the first alleging “that plaintiffs, before or at the time of instituting the suit,- did not present1 for allowance to defendant, as such administrator, the claim sued on', verified, probated and authenticated by the affidavit of said plaintiffs or either of them, as required by Statutethe second alleged, “that before or at the time of the institution of the suit, the said claim sued on was not verified, probated and authenticated by the affidavit of plaintiffs or either of them, or any one for them, as required by Statute.”

Plaintiffs moved to strike out the pleas, upon the grounds that they commenced and concluded in bar, yet interposed matter in abatement; and were not verified by affidavit. The court sustained the motion.

From a bill of exceptions taken by the plaintiffs, it appears that “after the pleas were stricken out, defendant declined to plead further ; and thereupon the case came on for final trialand defendant gave notice, and moved the court, that plaintiffs should produce to the court the affidavit of the justice and non-payment of the claim sued on, as required by the 89th and 91st sections of chapter 4, of Rev. Stat. under the head of Administration, and in case of their failure so to do, that they be non-suited. And thereupon the plaintiff:? read in evidence to the-court the bond sued-on; and declared in open court that no such affidavit, as required by the statute aforesaid, had been made, and they failed and refused to produce any such. And thereupon the court, upon motion as aforesaid of said defendant, in pursuance of said 91st section, in consequence-of the failure and refusal of .plaintiffs to produce such affidavit, rendered judgment of non-suit against them.”

Plaintiffs brought error.

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