| Ga. | Jul 15, 1874
1. The note given by the administratrix did not extinguish the debt against the estate. Indeed, the amendment which was proposed to be made to the pleadings, expressly charges that it was intended to bind the estate. In Wylly vs. Collins & Company, 9 Georgia, 223, it was held that one simple contract does not meige or extinguish another; that a bill, acceptance, or promissory note, either of the debtor or a third person, is not a payment or extinguishment of a debt, unless accepted as such; that the circumstances of the note being given by an agent of the principal debtor, cannot vary the question ; that if the written promise of the principal debtor does not discharge the debt, a fortiori, the note of the agent can have no higher efficacy, and that taking the note of the manager of a trust estate, for goods which went to the use of the cestui que trust, does not relieve the trust estate from liability.. These general principles, which are not disputed in this case, clearly show that the estate of Hines was still liable for the goods he purchased in his lifetime. The note was signed by “Ella S. Hines, administratrix on estate of D. P. Hines.’* Why, then, may not an action be brought on this, provided the declaration sets out the consideration or account for which it was given ? It may not be necessary that all this should done; and yet a note thus taken by a creditor may impose a burden on him to show what has become of that note before he can obtain judgment on the original consideration. The-protection of the one who gives the note may require this, and if the person who thus signs a note is also-the representtive of the estate, and is sued as such, it is the safest way to-set forth the whole transaction, the note and the account for which it is given, and thus dispose at once of every question in the case. It cannot injure the representative of the estate either in her representative or individual character, but offers-the surest protection to both, by furnishing a record which not only covers the matter as to -her liability as a representative, but disposes of the note also. If the administratrix had given
2. Section 3487 of the Code enacts that in an action by or against an individual, the pleadings may be amended by inserting his representative character. This may include other necessary averments showing that the debt is properly chargeable on the estate.
3. Under this rule, an amendment setting out the representative character of the defendant, and such facts as would show the liability of the estate she represents, should have been allowed. .The court could, by proper terms imposed on the party amending, protect the rights of the defendant from all damage by surprise, etc. Where the same parties are in court that would be brought in by a new suit, and the debt is the-same, there is no good reason why such amendments should not be allowed. As to the rights of assignees of choses in action, see section 2244 of the Code.
4. The fact that a female, who is a minor, married by the consent of her parents, or that on becoming a widow she has administered on her husband’s estate, does not bind her individually on a note given by her, whilst a minor, for an account due by her deceased husband, and the court below was not in error in its ruling on this question.
Judgment reversed.