5 Ala. 421 | Ala. | 1843
1. This is a summary proceeding, given by statute, and unknown to the common law: consequently, to sustain the judgment, it must appear that the statute has been strictly pursued. This doctrine has not only been recognized in the case
“ § 7. If any person or persons shall be indebted to said Branch Bank, as maker or endorser of any note, bill, or bond, expressly made payable and negotiable at said Branch Bank, and shall delay payment thereof, it shall be lawful for the President of the Branch Bank, after having given thirty days’ notice thereof, to move the circuit court of the county of Mobile, on producing to said court, before which the motion is made, the certificate of the President of the Branch Bank, that the debt is really and bona fide the property of said Branch Bank, for judgment, &c.”
John Murphy, the intestate, was one of the makers of the note, which is the foundation of this summary proceeding; Duncan W. Murphy and Robert N. Murphy have been appointed his administrators, since his death, and are liable in that capacity, alone— it is not pretended 'that they were either makers or endorsers of the note. Would it be consistent with the rule laid down, to subject them to a judgment, on thirty days’ notice, and motion ? As the remedy is only expressly given against the makers and endorsers, and not extended in terms to the representatives of those, who may die before payment, it cannot be properly used against those who are only liable in that capacity.
This principle was fully recognized in the case of Dumes vs. McLosky, decided at the January term, 1843. That was a summary proceeding, by way of distress for rent, in the city of Mobile, under the act of 1834. In that case the court confined the remedy to the tenant individually, and stated — “ This is a summary remedy, and according to all our decisions upon this class of cases, cannot be extended, by construction, beyond its terms.”
The case of Logan, adm’r v. Barclay, [3 Ala. Rep. N. S. 381] is one strongly in point. That was a proceeding against a constable, by motion, under the statute, for failing to make money upon an execution, when he could have done so, by the use of due diligence. The court held that, after the death of the constable, pending the motion, the suit could not be revived against his administrator, because the revival of the suit is not provided for by
2. There was, also, a misjoinder of the parties. It is too well settled, to require argument, that, at common law, an administrator of one of several joint contracting parties, cannot be sued in the same action with the survivors. On the principles already stated, in this case, we do not think the act of February 3d, 1840, entitled “ an act to change the manner of bringing suits on bills of exchange and negotiable paper,” which has been referred to by the counsel for the defendant in error, will warrant a joint proceeding against the administrators of a deceased maker, or endorser, of a joint note or bill, and the surviving makers, or endorsers.
These points sufficiently dispose of the case, and it becomes unnecessary to notice the other assignment.
Let the judgment'of the court below be reversed.