Tremper against Wright, who is impleaded with P. Turner, administrator of E. Turner, deceased

*Tremper against Wright, who is impleaded with P. Turner, administrator of E. Turner, deceased. If an administrator, by his plea in this court, admit assets, on which thera is a regular judgment entered, it will not be set aside, to let in a plea of a judgment confessed in the common pleas, after filing the plea in this; not even though the judgment taken on the assets admitted, be for a few cents more than in strictness appear to have been acknowledged. Assumpsit against administrators. Slosson moved to set aside the judgment obtained in this cause for irregularity, and that the defendants be let in to plead a judgment recovered in the common pleas. The affidavit on which the application was founded, set forth, that on the 2d of November, 1802, a plea was filed in this cause, by the defendant Wright, stating a debt by .specialty, for 14 dollars and 75 cents due from the intestate to one Cornelius Cole, with interest from the 14th June, 1800, remaining unsatisfied, and plene administravit, except as to 702 dollars and 80 cents, and the aforesaid debt: that on this plea the plaintiff, on or about the 1st of February, 1803, entered in the rule book of the clerk of this court, in Albany, the following rule: “The defendant, James Wright, having by his plea acknowledged assets unadministered in his hands, to the amount of seven hundred and two dollars eighty-one cents, ordered judgment therefor on motion of Mr. Gardinier, and also, on like motion, interluctory judgment for the residue, and that a writ of inquiry issue.” That after filing the plea aforesaid, to wit, on the day of January, 1803, in January term of that year, a judgment for 157 dollars and 12 cents damages, and 15 dollars and 15 cents costs, was recovered against the deponent in the common pleas for the county of Ulster, in an action against him, as administrator aforesaid, on a simple contract debt due from his intestate, which judgment he did not know ought to have been pleaded to the above suit. The judgment, he said, as it appears on the record, is taken for twenty-eight cents too much, as it ought to have been entered on the assets, confessed for no more than the residue of these assets, after deducting the amount of the specialty and interest. This being a manifest irregularity, the court will, in favor of administrators who cannot otherwise be remunerated, set aside the proceedings, for the purpose of letting them in to plead a judgment to which they will otherwise be liable de bonis propriis. Gardinier, contra, made a preliminary objection to the affidavit *of service of notice; which stated it to have been on a clerk of his in his office; he insisted that the name of the clerk ought to have been stated, that he might have known whether it was his clerk or not. [MAJORITY — Per Curiam.] Per Curiam. It is sworn that the service is on your clerk, which is fully sufficient. Gardinier then read an affidavit, by which it appeared that the capias in this suit issued on the 15th June, 1802, and was returned, in the July term following, cepi corpust as to the defendant "Wright. That the capias in the common pleas, though returnable in-July, 1802, was not filed until the 10th of November following. That the declaration in this court was filed on or about the 8 th of September, 1802, that in the common pl'pas'not till the 26th of November, and that the judgment in the common pleas was by confession; that a writ of inquiry in the present cause had been duly executed ; the damage assessed to 1,075 dollars, and a record of the judgment thereon duly signed and filed on the 23d of November last. From this, he argued, the presumption was, that the suit had been first commenced, though if otherwise, which it might have been, the defendant ought to have shown it. But after-filing a plea on the 2d of November, admitting assets, he ought not to be permitted, on the 7th of January following, to suffer a judgment by confession, on a demand of no higher nature than that in which he had acknowledged assets. Independent of this, the application was too late. The twenty-eight cents were among the minimis, of which non curat lex. The judgment was regular for the assets confessed, and for the residue, guando acciderint. Per Curiam. The proceedings on the part of the plaintiff have been perfectly regular, and therefore no cause shown for the interference of the court. The interlocutory judgment was necessary to liquidate his demand ; it after-wards becomes peremptory for the sum confessed, and for assets in futuro as to the residue. Motion denied.