12 Tex. 88 | Tex. | 1854
The questions presented by the record, in this case, are settled by the previous adjudications of this Court.
It is true, that the plaintiff, in his representative character, could not bind the estate by his warranty. (Lynch v. Baxter, 4 Tex. R. 431:) And so much of the answer as set up and relied on his alleged warranty, was rightly stricken out. But it is also true, that, though the administrator of an estate cannot bind the estate by his warranty, or render it responsible in damages for frauds or torts, committed by him, yet in his dealings with third persons, in respect to the estate, he is not, by his representative character, absolved from the universal
The Court also erred in rendering judgment for the want of an answer, and without the intervention of a jury, when the defendant had answered by a general denial. Though the general denial did not put the plaintiff upon proof of the execution of the note, it required its production, (Hatossy v. Frosh, 9 Tex. R. 610, 613,) and it precluded the plaintiff from taking judgment by default, for the want of an answer. The judgment is reversed and the cause remanded.
Reversed and remanded.