Martin v. Baldwin

7 Ala. 923 | Ala. | 1845

ORMOND, J.

— The objection to this claim, because it was not filed pursuant to the act of 1843, (Clay’s Dig. 194,) and and verified by affidavit, cannot prevail. The estate was declared insolvent, and the order for filing claims against the estate, made previous to the passage of the act just cited, it must therefore be governed by the law then in existence, which did not require such verification.

From the instrument offered in evidence, it appears, that the bill of exceptions therein recited, was drawn for the joint benefit of all the parties to it, and that eách one, was interested in it, and entitled to an equal share of the proceeds. As each one of the parties to it was individually, responsible for the whole amount, it results necessarily, that each was surety for the others, for all above his own interest in the bill; they were therefore, co-sureties for all above the sum, they were individually liable for. The acceptor having been compelled to pay the entire amount of the bill, has the right to recover in this action, the share of the plaintiff’s intestate, which is one sixth part, and as it appears that three of the parties are insolvent, the estate is also liable for one third part of the amount for which, if solvent, they would be responsible, making in all, one third part of the entire amount, as the Court charged.

It appears, that this estate was reported insolvent previous to the passage of the act of February, 1843, to amend the laws in relation to insolvent estates, but the proceeding upon this claim, was had under the authority of that act, in virtue of which, also, this writ is prosecuted. As the law stood previous to the passage of the act of 1843, no writ of error could be prosecuted until after the final determination of the cause, and then by, or against, all the parties to the suit. [Cawthorne v. Weissinger, 6 Ala. 714.] By that act, (Clay’s Dig. 195,) a writ of error may be prosecuted by a single creditor, whose claim has been in whole, or in part, rejected; or by the administrator, if improperly admitted, within twelve months after the decision. But we are very clear, that a writ of error cannot be prosecuted,'by, or against, a single creditor after the estate has been finally settled; but that it must then be presented in the name of, or against all the creditors. In no other way, could the unity of the case be preserved, which might otherwise be split up into a hundred fragments. In this case, it does not conclusively appear, that the estate is finally settled, though there are some facts stated, from which such an inference might be drawn.

In the previous part of this opinion, it is stated, that the claim did not require to be verified, as it was filed under an order made previous to the passage of the act of 1S43, although all the subsequent proceedings appear to have been had pursuant to the last act. The two acts must be reconciled, so as not to conflict with each other; where claims have been in process of being audited, at the time of the passage of the last act,it is obvious the former law must apply; but when, as in this case, the initiatory steps, only have been taken, the proceeding, so far as it has progressed, must be governed by the former law, but so far as any subsequent action is had, it must conform to the act of 1S43.

The result of this examination is, that there is no error in the judgment of the Orphans’ Court, and it is therefore affirmed.