Page:Borden v. State ex rel. Robinson.pdf/6

524 claims against the said estate over which his claim has priority in the order of payment. Therefore upon consideration of the premises, it is ordered by the court that said executor forthwith pay over to said Samuel Robinson the sum of $155.66, the balance of his said claim, with interest thereon at 10 per cent. per annum from the 23d day of April, 1845, until paid."

Plaintiff next read, against the objection of defendants, an execution issued upon the above order of payment against Woodruff, dated 5th day of February, 1846, directed to the sheriff of Pulaski county, and returnable to said probate court on the 13th day of April, 1846, with an endorsement thereon by defendant Borden, as such sheriff, showing that the execution came to his hands on the day it was issued, that on the same day he levied on a slave, and stating that he could not sell the slave owing to the fact that the writ was returnable previous to the first day of the circuit court for the county, when he was required by law to sell slaves, &c.

Plaintiff then proved that Woodruff filed his account current for settlement as such executor, in said probate court on the 22d day of July, 1845, and that said settlement as confirmed was entered of record on the 13th November, 1845, during the October term of that year; and read the same as evidence from the record.

In this settlement the estate is charged with $174.34, and credited with $280.71, showing a balance in the hands of the executor of $106.37. In a note at the bottom of the account, it is stated that claims amounting to $161.50 with which the estate is credited, had not been collected.

Defendants moved the court to exclude and reject as evidence the said order of payment, and the said execution issued thereon, but the court refused.

Defendants then proved that the final adjournment of the October term of said probate court in the year 1845, took place on the 2d day of December, 1845, and that no demand was made upon Woodruff in pursuance of said order of payment until at