5 Ala. 490 | Ala. | 1843
1. It is insisted, that the replication to the fourth plea is too limited in its averments; that it is not enough to show that the debt sued on was contracted in another State, but it should go further, and deny that the payee- of the note resides here. Such is not the law. The statute which requires the presentation of claims against the estate of a deceased person within eighteen months from the grant of letters testamentary, or of administration, contains an express exception in favor of debts contracted out of the State. Under the influence of that excep
2. The statute of 4 and 5 Ann, chap 16, enacts that the defendant in any action or suit, &c., may, with-leave of the court, plead as many several matters thereto, as he shall think necessary for his defence. Our statute upon the subject uses terms not materially different, and provides, that «the defendant in any cause may plead as many several matters as he may judge necessary to his defence.” Under the English statute it has been held, that although it is permissible to interpose several pleas to the declaration, the defendant cannot rejoin two several matters to the plaintiff’s replication. [Warrant v. Ives, 2 Strange’s Rep. 908; 5 Bac. Ab. K. 3, 447.] And such being the settled construction of that enactment, our act which was borrowed from and passed in reference to it, must receive a similar interpretation. Consequently, the direction of the court to strike out one of the defendant’s rejoinders to the plaintiff’s replication was entirely proper.
3. It is argued for the plaintiff in error, that the general rule, which requires the plaintiff in an action ex contractu, to make out his right to recover against all the defendants, in order to a judgment against any, proves the. charge of the circuit judge to be erroneous. To the justness of this conclusion we cannot assent, when attempted to be applied to the present case. The defendants are not sought to be charged upon a contract made by themselves, but the declaration sets out a legal liability, made by the intestate and his copartners. An executor or administrator, is in general regarded as a mere trustee for creditors and the legatees, or distributees, and when sued upon a contract entered into by his testator or intestate, will not be considered as having promised in fact. They succeed to the legal rights of the deceased in such part of his estate as they are entitled to, and must be sued for the recovery of the debts with which he was chargeable. [Grassner v. Eckart, 1 Binn. Rep. 575; Wilson v. Wilson, 9 S. and R. Rep. 428.] And it has been held, that the rule, if one of two persons having a joint cause of action ex contractu, ¿sues alone, advantage may be taken under the general issue, does
It follows from what has been said, that the judgment of the county court must be affirmed.