Mulhall v. Williams

32 Ala. 489 | Ala. | 1858

RICE, C. J.

Upon the authority of Jones v. Dawson, 19 Ala. R. 672; Kirkman v. Benham, 28 Ala. 501; and Lyon v. Hays’ Adm’r, 30 Ala. 430, the decree of the chancellor is affirmed.

It is proper, however, to add, that a majority of the court doubt the correctness of Jones v. Dawson, so far as it overrules or conflicts with any point actually decided • in Coopwood v. Wallace, 12 Ala. R. 790. They incline to the opinion, that when an administrator, who is required by law to see that reasonable diligence is used for the collection of money due to the estate, in the proper performance of that duty selects an attorney to collect it, and is not indebted to the estate, and is insolvent, and has not charged the estate with the fees or compensation properly due to the attorney, — a case is presented which, perhaps, may be distinguished from that which was presented in Jones v. Dawson, Kirkman v. Benham, Lyons v. Hays, or here. — See Notley Young’s Estate, 3 Maryland Chancery Decisions, 461. They put the case of an administrator above, by way of example merely. In every case similar in principle to that, they think the court ought not to feel itself concluded by Jones v. Dawson.