1 Stew. 580 | Ala. | 1828
It is insisted in the first place, that there is a misjoin-der of counts ; that the defendant below is charged in the first count as executor, and in the second in his individual character. Chitty, in his first, volume,
It is, however, urged that the first count is in itself defective in several respects. In the first place, this defect is said to consist in not stating the promise to pay the legacy, to have been in writing. It is at least questionable, whether statute of frauds requires that a promise of this kind should be in writing; for its language is, that no action shall be brought whereby to charge any executor or administrator upon any special promise, to , answer any debt or damages out of his own estate, unless the.
But it is further contended, that no action will lie in a court of common law to recover a legacy. This position, to a certain extent, and with certain qualifications, may be correct. There have been different decisions in the English Courts, at different periods, and with different modifications as to this point. But let this question stand as it may in England, the latter part of the forty-second section of the act of 1803,
The only remaining question of moment is, whether
A majority of the Court are of opinion that thi judgement must be affirmed.
Page 197.
Page 292*
1 Cliitt. PI. 237. 1 Saund, 276^
Laws Ala, 333*
1 Chitt. 643, marginal page*
2 Saund. 106, 107.
6 John, 287.
TeimR. 493.