7 Del. 546 | Del. Super. Ct. | 1863
THIS was an action of debt by William Bush against Henry S. McComb, who were co-administrators on the *547 estate of Charles Bush, deceased, to which the defendant in addition to nil debet pleaded that they were such co-administrators on the 1st day of September, 1856, at which time there remained in their hands unsold, certain vessel property of the deceased, which in the appraisement of his goods and chattels, had been valued at $8,600, but that the market value of them had, between the time of the appraisement, which was on the 6th day of December, 1855, and the day and year aforesaid, depreciated to the amount of three thousand dollars, and in consequence of their omission to sell the same within the time prescribed by law, they had become jointly liable to the estate of the deceased for the loss so incurred; and that thereupon in consideration that the defendant would accept the same and account to the said estate for their appraised value, the plaintiff on the day and year first above mentioned, promised to indemnify him out of his share of such commissions as might thereafter be allowed them as such co-administrators, to the amount of one-half of the aforesaid depreciation in the market value of them; and that in consideration of that promise, the defendant on the day and year last referred to, accepted an assignment of the vessels and duly accounted to the estate of the said deceased for the appraised value thereof. There were several accounts passed by them afterward on the estate, upon which the aggregate amount of the commissions allowed them, was $4,507.57; and this action, was now brought by the plaintiff to recover from the defendant his portion, or the one-half of them.
T. F. Bayard, Esquire, was called and sworn as a witness on behalf of the plaintiff, and stated that he had been of counsel for the parties as the administrators of the deceased, and had frequently been consulted by each of them in regard to their business previous to the settlement of the estate. During his examination he was asked the question what statement, or declarations had been made to him by the defendant on a certain occasion referred to after the settlement of the estate and he had *548 ceased to be the counsel of either of the parties, in regard to the matter now in litigation between him and the plaintiff. that if the defendant, as one of the administrators, had received the commissions allowed them in the settlement of the estate *550 of the deceased, to the half of which, the plaintiff was entitled as the other, or his co-administrator, the action of debt would lie and the plaintiff could recover in it one-half of the amount of them with interest from the time they were due and payable to him, which would be from the date of the passage, or allowance of each of the several accounts before the Register of Wills, as no evidence had been produced to sustain the special defence pleaded by the defendant in the action.