W. S. ANDERSON, Appellant, vs. S. F. McGill, Administrator of the Estate of John Brown Smith & Co., Appellee.

[January Term, A. D. 1868.]

Appeal from the Court of Quarter Sessions and Common Pleas, Montserrado County

The opinion of the court is that the question raised by the appellant as to whether the appellee has a right to sue him in this action, as administrator of John Brown Smith & Co., is a mixed question of law and fact, and since the appellee alleges in his complaint that he is the administrator, the burden of proof rests on him.

The second exception taken also involved a mixed question of law and fact, that is, the question whether the administration of John Brown Smith had a right to sue appellant for debts due John Brown Smith & Co.

The evidence necessary to the proof of the authority of an administrator is his letters testamentary. No satisfactory evidence appears to the court on these points, so as to enable the court to know for which party the judgment ought to be given.

In respect to the “award,” the court must say that an award must be final; else the court will not render judgment on it. In consideration of these facts, and for an impartial administration of justice, this court hereby remands this case to the Court of Quarter Sessions, Montserrado County, in which court it was originally tried, to be tried over again in a manner that will best serve to meet the ends of justice, and that all costs incurred since the appeal has been taken shall follow the final issue of the case.