11 Ala. 259 | Ala. | 1847
The affidavit of the defendant, made to obtain a suppression of the deposition, was insufficient, as it did not disclose that any injury was sustained by his being deprived of the power to cross-examine. It should have set forth, that if an opportunity for cross-examination had been afforded, he could have proved certain facts material to him, which had been omitted, otherwise there is no motive whatever for retaking the deposition. But independent of these considerations, we think the plaintiff had the right to take the deposition at any time, between the two points of time designated. If this is not so, what is the proper time for commencing it, short of the last moment designated, so as to conclude it within the proper time? We can see no difference between this case, and the usual notice that it will be taken on a particular day, when the party has the entire day to take it in j and it is the duty of the opposite party to attend the whole business part of the day, until the deposition is taken.
When an administrator resigns his trust, and shows that he has fully administered the assets which have come to his' hands, or that he has turned them over to his successor, a suit cannot be further prosecuted against him. But when an administrator pleads, or suggests, that the estate has been reported insolvent, as the effect is, that no judgment can be obtained against him as the representative of the estate, it follows necessarily, that such a plea is bad, unless it also shows that the report of insolvency was made by him, and that he is still the representative of the estate. If this were not so, it might happen, that an administrator might waste the assets, and still prevent any judgment from being obtained against him, his own conduct having superinduced the necessity on the part of his successor, of declaring the estate insolvent. The demurrer, therefore, to the replication, which disclosed the fact-, that the estate was not declared in
The charges moved for were properly refused. The first supposes, that the contract on the part of the defendant’s testator was void, unless in writing, being as contended, a promise to pay the debt of another. The facts are, that the deceased, as an attorney at law, had received from the plaintiff, a note for collection, on one Young, which he settled with Young, by purchasing from him some slaves, and agreeing to pay the plaintiffs Young’s debt. This is not such a promise as is required by the statute of frauds to be in writing. Here was a full consideration moving from Young, to the deceased, and a parol promise to pay Young’s debt to the plaintiffs was sufficient. The case of McKenzie v. Jackson, 4 Ala. 230, is expressly in point.
The second charge proceeds upon the idea, that the action for money had and received, could not be maintained, unless the deceased received the amount due from Young in money. This proposition is equally untenable with the last. Having received from Young the slaves in lieu of money, he cannot controvert it, if the plaintiffs elect to consider it a payment to him of the note in his hands, for collection. [Stewart v. Conner, 9 Ala. Rep. 803.]
The third charge brings up the legal effect of the testimony of the witness, Osgood. He proves, that as the agent of the plaintiffs, he called on the defendant for payment, who exhibited to him the books of the deceased, from which it, appeared that he had credited the plaintiffs in his cash book, with the money received from Young, and had charged them with the commissions, as an attorney at law, for collecting the debt. This testimony certainly authorized, if it did not require the jury to infer a promise from him to them to pay the amount so collected. Nor is there any thing in the testimony of the other witness, adverse to this inference. We are clear in the opinion, that there is no error in the record and that the judgment must be affirmed.