Page:Pennington's Executors v. Yell.pdf/3

214 While dower remains unascertained, and until there has been an actual admeasurement by metes and bounds, it is a mere potential interest, amounting to nothing more than a chose in action, and is not subject to seizure and sale by execution at law.

Statement of the case
Catharine Pennington, as executrix, and John Irwin, as executor of John E. Pennington, deceased, brought an action of assumpsit against James Yell, Esq., to the May term of the Pulaski circuit court, 1845.

There are four counts in the declaration: The first alleges that on the 16th day of September, 1839, plaintiffs' testator placed in the hands of the defendant as an attorney, for collection, a note on J. F. Pullen and E. G. Smith for $227.84, then due; and also a note on E. G. Smith for $84, due in January, 1840, which might have been collected by proper diligence, &c., but that by the negligence, want of proper skill and diligence, &c., of defendant the claims were wholly lost.

2d, Count for failure to collect the claim on Pullen and Smith, describing it as a writing obligatory.

3d, Count for failure to collect a note on one James C. Groce, placed in defendant's hands for collection by plaintiffs' testator.

4th, Count for money had and received &c., &c.

Defendant pleaded non-assumpsit to the counts generally, and set-off to the fourth cdunt, to which issues were made up.

At the May term, 1846, there was a trial, verdict for plaintiffs, and a new trial granted.

The cause was again submitted to a jury at the April term, 1847, and they failed to agree on a verdict.

At the October term, 1847, the cause was again tried, and verdict for defendant.

Plaintiffs moved for a new trial, on the grounds:

1. That the verdict was contrary to, and against the evidence.

2. The court erred in refusing to instruct the jury as requested by the plaintiffs, and gave erroneous instructions.