In regard to the second count in the declaration, a majority of the judges, Grimke, Waties and Lee, were of opinion, that the letters testamentary should have been produced, to show the power of the executor of William Gist to transfer the note ; and that there should be a new trial, unless the plaintiif would agree to release as much of the damages as the note and interest amounted to, which would leave the note out of the question,

contra, was of opinion, that the not demanding oyer of the letters testamentary, was a tacit admission of them, and that it was too late, after verdict, to take advantage of the party’s own laches, in not making such demand, if he was doubtful of the executor’s authority to negotiate the note.

who had presided at the trial, and who had overruled this objection, could give no opinion on this motion»

There was, therefore, a rule for new trial nisi, fee»,

N. B. The plaintiff’s attorney afterwards released the damages on the 2d count, which left the Verdict on the 1st one unimpeached.