8 Wend. 500 | N.Y. Sup. Ct. | 1832
It seems to be well settled upon authority, that a judgment upon a bond or other security given by an administrator or executor, though in his repreMutative .character, does not bind the estate which he represents, nor can it be taken upon the execution issued thereon. The description of the defendants in the bond as executors or administrators, is surplusage, and they are chargeable upon such a bond and judgment only in their own right. It is their personal contract, and whatever their rights may be, under such a bond or judgment if paid by them, in their settlement with the estate which they represent, it is not a legal debt or judgment against such estate, and cannot be pleaded as such. Geyer v. Smith, 1 Dall. 347; 1 Mod. 225 ; 10 id. 254; Croke Eliz. 406; 9 Coke, 93 ; 6 Mass. R. 58 ; 8 id. 199, where the doctrine upon this subject is very elaborately discussed. 1 Maule & Selw. 395. 7 Taunt. 580. 8 Johns. R. 120. If the bond and warrant of attorney could be considered merely as the means of confessing a judgment, then such a judgment would stand upon the same footing with a judgment by cognovit, and would be de bonis testatoris; but the bond is a security entirely independent of the warrant of attorney, and the debt of the intestate for which it was given is merged in the bond, and becomes the individual debt of the obligors. The replication is therefore good, and the plaintiff is entitled to judgment upon the demurrer, with leave to the defendant to rejoin, on payment of costs.
