Preston

This action was commenced against Sewell Knapp, in his lifetime, to recover $493.81 for goods sold and delivered to him by 1.1ST. Miller, the latter having assigned his demand to the plaintiff. After having answered, denying the sale and delivery of the goods and his indebtedness to Miller, Sewell Knapp died, and his executrix, Caroline Knapp, was regularly substituted as defendant, on motion of defendant’s counsel. The case was tried by the court on the original pleadings, it being expressly admitted by the defendant on the trial that the claim had been presented to the executrix for allowance in due time, and that she had refused to act upon it. The trial resulted in a judgment for plaintiff for the sum demanded, against the executrix absolutely, and independently of “ due course of administration.” The appeal is from the judgment, and, from an order denying defendant’s motion for a new trial.

1. The judgment should have been made payable in *561 due course of administration, and not otherwise. This error, however, could be corrected by a modification of the judgment, without a new trial; but, as will appear, a new trial should be granted upon another ground.

2. Appellant’s…