2 Port. 33 | Ala. | 1835
Murdoch M. • McKenzie brought an action of as-sumpsit, in the Circuit Court of Morgan county, against Thomas McEldery and Reuben Chapman, executors of William S. Goodhue, and declared against them for work and labor done by him for them as executors of said estate, at their instance and request, in and about the settlement of the estate of the said Goodhue. The declaration avers a liability, and super se assump-sit, in the common form. McEldery pleaded in short, “ non-assumpsit, and set-off,” to which there was a replication and issue, in short. The cause was tried at March term, 1833, and a verdict was had in favor of the plaintiff against both defendants, for the sum of eighty-eight dollars and fifty-five cents, and a judgment de bonis testatoris was rendered thereon. No notice appears to have been taken of the failure of Chapman to plead.
At the trial, two bills of exceptions were taken to the opinion of the Court. In the first, and only one which it will be necessary for the Court to notice, it is stated, that “itwas proved that the work and labor done, and which is sued for, was done at the request of the executors, as set forth in an account which is made part of the bill of exceptions, and which appears to be principally for posting up the books of the testator : upon which evidence the Court charged the jury, that if they believed that the work done was such as was beneficial to the estate, that, in that case, it was char
The case appears to have been treated by the plaintiffs, and the Court below, as a suit against them as-executors, and the charge of the Court directly involves the question, whether an executor or administrator, by virtue of their general powers as such, can make any contract in their representative' character, which at law, will bind the estate, and authorise a judgment de bonis iesiatoris.
This Court, in the case of Greening vs. Sheffield,
If the executor is able to contract and bind the
That there are cases in which a court of equity would charge the estate, there can be no doubt; but where the executor is living, liable to be sued, and for aught that appears, able to pay, the remedy is against him individually.
In this case, the action is against both executors : only one has pleaded. The evidence is, that the work was done at the instance of one, and which one does not appear; and the judgment is against both, and the estate is charged. So much error, in so short a case, does not commonly occur.
The judgment must be reversed; and as the action is misconceived, the case cannot be remanded.
Ala.Rep.276.