Jester v. Knotts

Citations

• 30 Del. 350
• 7 Boyce 350
• 57 A. 1094
• 1904 Del. LEXIS 9

Syllabus

<p>Action by Administrator-Plea-Set-Off-Replication-Probate of notes-statutory Provisions-Applicability-Tort-Waiver-Assumpsit.</p> <p>1. Where in assumpsit by an administrator defendant pleads a set-off consisting of notes given to defendant by the intestate, a replication to the plea to the effect that there are no assets in the hands of the administrator, and that there are prior claims against the estate, will be stricken out by virtue of Rev. Code, p. 794, c. 106, § 22, authorizing a set-off in an action by an administrator in case of mutual debts between intestate and defendant.</p> <p>2. Probates of notes admitted in evidence without objection under a plea of set-off in an action by an administrator are produced in time when produced at the conclusion of the testimony on both sides, and after a motion has been made for the exclusion of the notes for want of probates.</p> <p>3. Rev. Code, p. 677, c. 89, § 29, providing that before an administrator shall pay a debt due from the intestate the creditor shall make affidavit that nothing has been paid on the debt, and that the sum demanded is due, has no application when the creditor of the intestate sets up his claim as a set-off when sued by the administrator.</p> <p>4. Where one tortiously takes possession of property of another, and sells it, and obtains money therefor, the owner may sue the wrong doer in tort for a trespass or for a conversion, or he may waive the tort, and sue for money had and received from the proceeds of the sale.</p> <p>NOTE: This case was reported in 57 Atl. 1094, but was inadvertently omitted from the then current official volume. See Conaway v. Pepper, post.</p>