So, that the only interpretation which, in our judgment, is authorized by the rules we have laid down, and will effectuate the intention of the parties, is, to give interest from the first of January, 1835.

There is, then, no error in the judgment of the circuit court, and the same is affirmed.

HOSEY, ADM'R, v. BRASHER.

[8 PORTER, 559.]

LETTERS OF ADMINISTRATION ARE NOT THE SOLE COMPETENT EVIDENCE of administration granted. It will be sufficient to show the order of the court granting the administration, and subsequent orders treating the person appointed as administrator.

ASSUMPSIT against an administrator. Ne unques administrator was pleaded. The plaintiff did not offer the letters of administration in evidence; but relied to disprove the plea upon the transcript of a record of the orphans' court, which he contended had appointed defendant. The contents of this transcript appears in the opinion.

Chilton, for the plaintiff in error (defendant below).

Phelan, contra.

COLLIER, C. J. The admissibility of the evidence, and the charge of the court, present the only question for our decision. Our statutes certainly contemplate the issuance of letters of administration, to the person appointed administrator, yet, as the letters are but evidence of his authority, he might act without them, if the records of the court show his appointment, etc. Whether a person appointed administrator, may be allowed to exercise his office, until he has been qualified by taking the necessary oaths, and entering into bond with sureties, is a question which does not necessarily arise in the present case. The transcript contains an order made the first of September, 1834, requiring the plaintiff to appear in court, and enter into bond. and take the necessary oaths. And as he is recognized in the order of publication, of April, 1836, as administrator, we should intend that he complied with the previous requisitions of the court; the more especially, as the law does not require either the bond or oaths to be recorded.

It has been held in England, that an examined copy of the act book, stating that letters of administration were granted to

the defendant, are proof that he is administrator, although no notice was given to produce the letters of administration: See 1 Stark. Ev. 248; 1 Saund. Pl. and Ev. 504; Elden v. Keddell, 8 East, 187; Davis v. Williams, 13 Id. 231; Gorton v. Dyson, 1 Brod. & B. 219. By the admission of the evidence in the case at bar, no injury could possibly result to the plaintiff; if he had declined accepting or acting under the grant of administration, there could be no difficulty in showing it. In the absence of any such countervailing proof, the court should not have instructed the jury that the evidence was insufficient; and consequently The judgment must be affirmed.

A RECORD OF THE GRANTS OF LETTERS OF ADMINISTRATION is the proper evidence of the grant; it can not be superseded by a certificate of the register of probate as to the grant: Morse v. Bellows, 28 Am. Dec. 372.

WEST v. CUNNINGHAM.

[9 PORTER, 104.]

IF A VENDEE REFUSE TO FULFILL HIS CONTRACT, the vendor may resell the goods without any notice to him, and look to him for the loss that he may have sustained by reason of the refusal.

A RESALE MADE AFTER A VENDEE'S REFUSAL TO COMPLETE HIS PURCHASE is not conclusive in fixing the extent of his liability; he may show that the sale was unfair, or was under circumstances calculated to prevent a full price.

WARRANTY OF SOUNDNESS WILL NOT BE INFERRED upon the sale of personal property.

A COURT SHOULD NOT ENTERTAIN A MOTION For a New TRIAL, based upon grounds which are included in a bill of exceptions, without first requiring the party to waive the bill; but if the court does entertain such motion without requiring the waiver, an appellate court will not refuse to consider the bill.

ASSUMPSIT. The action was brought upon a contract entered into between the parties, whereby defendant in error undertook to purchase a large quantity of oranges from plaintiff at the price of fifteen dollars a thousand. The contract provided for an immediate delivery. Defendant was informed, soon after the sale, that he must immediately take away the oranges, or that they would be sold at his expense. Defendant still neglecting after the notice to take away the oranges, they were resold. There was contradictory evidence as to the soundness of the fruit. The jury was instructed that though a resale was legal, if the purchaser had refused to take the goods, yet that it must have been after notice to him; it was further instructed that a

sound price implied a sound article, if no express covenant to the contrary existed. Verdict and judgment were for defendant.

Campbell, for the plaintiff in error.

Stewart, contra.

COLLIER, C. J. That the seller of property may resort to his action against the purchaser for the recovery of such damages as he shall sustain by the failure of the latter to complete his purchase, is a proposition too plain to require illustration. In such a case the recovery must be graduated by the injury which the seller sustains; unless, perhaps, where that injury is increased by his own imprudent course of conduct, in regard to the thing sold. If a purchaser refuses to comply with his contract he absolves the seller from the obligation to continue in a situation which will enable him to deliver the article sold: whenever he shall, thereafter, change his mind, he may sell it if he think proper. In fact, a sale, if properly conducted, never can prejudice the purchaser, and would often be beneficial to the seller. Suppose the thing sold subject to waste or to perish, immediately-if the seller were obliged to keep it, the purchaser would be liable to the full amount of the purchase money; but, if allowed to resell them, the purchaser would be entitled to a credit, for so much as it yielded, upon the resale, and would only be charged for the deficit. Thus we discover how unreasonable would be a rule, requiring the seller to suffer the article to perish on his hands, and run the risk of the solvency of the buyer. It is unnecessary, however, to consider at greater length this particular question, for it was largely examined in the School Commissioners v. Aikin, 5 Port. 169; and in that case, the court say: "After a purchaser has absolutely refused to comply with a contract of sale, the seller is at liberty to consider the contract at an end, and immediately sue for the damages he has sustained."

In that case, the declaration disclosed the fact of a resale, and stated the difference between the first and second sale, and this was the sum sought to be recovered. The court say, further: "A resale was not necessary to fix the liability of the defendant for a breach of contract, and the action, in another form, could have been maintained, without showing a resale: it might be one mode of ascertaining the amount of damages, perhaps the best, but certainly not the only way of ascertaining the same." To the same effect is Adams v. McMillan, 7 Port. 73. If a resale was not essential to the plaintiff's right, and was not conclusive,

as to the damages, to which he was entitled, it is difficult to conceive of any reason for requiring the purchaser to be informed of the time and place of resale. The amount yielded, at the resale, we have seen, is not conclusive, to show the extent of his liability, and he may, whether he have notice or not, show its unfairness; or that it was made under circumstances unusual, and calculated to prevent a sale at a fair price. The contract, then, between the seller and purchaser, being at an end, in consequence of the default of the latter, he had no right to in-, sist upon the necessity of notice: and the court erred in the instruction to the jury, on this point.

The second instruction of the judge of the county court, is entirely opposite to the course of judicial decision at common law-and though it may be defensible in ethics, or sustained by a well-settled rule of the civil law, we do not feel called on to examine it further; but will content ourselves with saying, that it is adverse to the previous decisions of this court: See Ricks v. Dillahunty, 8 Port. 134.

It was objected at the argument, by the defendant's counsel, that under the pleadings, the plaintiff could not have been injured by the charge to the jury, however erroneous it may be in itself. We think otherwise: the first count in the declaration is well adapted to the facts disclosed in the bill of exceptions, and the instructions to the jury calculated to prevent a recovery. The defendant's counsel, upon the supposition that the opinion of the court might be against him, upon the questions of law raised by the plaintiff, insists that the bill of exceptions was waived by the decision of the county court, on the plaintiff's motion for a new trial.

In the first place, it may be remarked, that the record does not inform us for what cause the motion for a new trial was submitted to the county court, so that, for anything appearing to the contrary, it may have been founded on causes entirely different from those embraced by the bill of exceptions. If such be the true state of fact-and if necessary, we would intend it -it was the duty of the county court to have entertained the motion for a new trial, without putting the plaintiff to elect the motion at the expense of waiving his exception.

But for the purpose of settling a question of practice, we will suppose that the grounds of exception, and motion for new trial, were identical. It is said, that if a party is dissatisfied with a decision of a subordinate court, upon a point of law, he may ordinarily cause it to be reviewed in either one of two modes.

1. He

may

move the court for a new trial; 2. He may tender

his bill of exceptions, and thus put the question on record, in order that it may be examined on appeal or writ of error. Bui he should not, under ordinary circumstances, be allowed by the subordinate court to pursue both courses. If he relies on his motion for a new trial, then his objection does not appear on the record, and of course an appeal or writ of error would be of no avail. But if he have his bill of exceptions sealed, the court should not grant a new trial, on the ground stated in the bill of exceptions, for the question is then on the record, and the error, if any, may be corrected by an appellate court: Fabrigas v. Mostyn, 2 W. Bl. 929. It has more recently been decided, that the court will, in no case, grant a motion for a new trial, when a bill of exceptions has been tendered, unless it be subsequently abandoned: 2 Chit. 272; S. P. Cogswell v. Brown, 1 Mass. 237; but in Reed v. Miller, 1 Bibb, 142, it was determined, that the court have no right to require a party to withdraw his exception to their opinion, before they will entertain a motion for a new trial, presenting the same questions of law. And in Dunham et al. v. Baxter, 4 Mass. 79, it was held, that the court will grant a new trial, without requiring the right of review to be waived, in a case where the court was of opinion, on the trial, from the facts shown by the plaintiff, that the law was such he could not recover, and stopped the examination of witnesses for the defendant on that ground; but the jury found a verdict for the plaintiff, against the direction of the judge.

A motion for a new trial addresses itself to the discretion of the court trying the cause, and is governed by the circumstances of the case, and those rules which have, from time to time, been adopted, as applicable to the subject. Following what we conceive to be the best established practice, we are of opinion, that the court trying the cause ought not to grant a new trial for the causes embraced by a bill of exceptions, unless the party submitting a motion distinctly waives the exception. If, however, the primary court make no such requisition of a party moving for a new trial, but allows his exception, and considers and overrules his motion for a new trial, the appellate court can not refuse to consider the exceptions. This would be to interfere with the discretion of the primary court, or rather to determine, that it had been universally exercised, and was the subject of revision-an assumption entirely indefensible.

The judgment of the county court must be reversed, and the case remanded.

1. Roberts v. Roberts.