| Ala. | Jan 15, 1845
— The general principle is not denied, that an action of indebitatus assumpsit will lie, to recover back money paid upon an execution, issued on a judgment which has been reversed; but it is argued, first, that the rule does not apply to such a case as the present, where the judgment remains in full force, and the execution is not vacated.
The judgment in virtue of which the slave was sold, was rendered upon the proceeding, under our statute, for the trial of the right of property, a proceeding which is collateral to the judgment on which the execution issued, and is in itself a suit, conducted by different parties. The reversal of a judgment of
■The doctrine contended for, that no action can be maintained against the plaintiff, except in his character of administrator, proceeds upon the supposition, that the money derived from the sale of the slave, was assets of the estate in his hands to be administered; but no proposition can well be clearer, than that the'proceeds of this sale were not assets. If the distributees, or creditors, should attempt to hold him responsible for this money, the reversal of the first judgment, and the subsequent proceedings, would be conclusive to show, that the estate had no title to it.
It is further urged, that we must presume that the money has been paid out in the course of the administration, and that therefore, the plaintiff is not personally responsible. If such an inference could be drawn, it would avail nothing in this case. Cases may indeed be supposed, in which the prima facie intendment being, that the property belonged to the estate, the administrator would not be personally responsible, if he disposed of it in-the regular course of administration, before a claim was asserted to it. But that is not this case. Here, the levy was made, and the property sold by his direction, and he is personally responsible for the. consequences. No suit can be maintained, or judgment be recovered, against an executor, or administrator as such, unless the judgment when recovered, may be satisfied out of the estate in his hands to be administered. But it is too clear for argument, that no judgment could be maintained in this case against the estate, and jt therefore follows, that the judgment against him in his individual character was proper. Let the judgment be affirmed.