Page:Borden v. State ex rel. Robinson.pdf/4

522 executor. That payments were afterwards made on the claim, leaving a balance due on the 23d April, 1845, the date of the last payment, of $155.66. That on the 18th November, 1845, during the October term of said probate court, Woodruff, as such executor of said Cynthia Robinson, was ordered by said probate court to pay over to said Samuel Robinson the said sum of $155.66, with interest, &c., whereof the said Woodruff as such executor was convicted, as by the record, &c., would more fully appear &c. That after the making of such order, Woodruff, though specially requested, failed to pay over said money &c. That said Samuel Robinson for the purpose of obtaining satisfaction of said allowance and order, on the 5th February, 1846, sued out a fi. fa. thereon, directed &c., commanding &c., which afterwards came to the hands of said Borden as such sheriff to be executed, &c., and which he failed to execute, &c.

Defendants pleaded,


 * 1) That said Samuel Robinson did not obtain an allowance against said Woodruff as such executor in manner and form as in said declaration alleged.
 * 2) That there was not any record of said supposed order requiring said Woodruff as such receiver to pay over said sum of money to said Samuel Robinson remaining in said probate court, in manner and form as in said declaration alleged, &c.
 * 3) That said fi. fa. did not come to the hands of said Borden as such sheriff as alleged, &c.

Issues were taken to these pleas, the cause submitted to the court, sitting as a jury, and finding and judgment in favor of plaintiff for one cent damages.

Defendants filed a motion for a new trial, which the court refused, and they excepted, and set out the evidence.

On the trial, plaintiff was permitted to read from the record book of the probate court of Pulaski county, against the objection of defendants, the following order of allowance, made on the day in the declaration alleged: