| Miss. | Apr 15, 1854
delivered the opinion of the court.
The only question in this case is, whether the claim sued for in the circuit court was barred by the provisions of the twelfth section of the statute of 1844, (Hutch. 831).
The facts of the case were as follow: A note was made by J. A. and D. C. Thomas, payable to the order of N. & E. O’Reiley & Co., at the Commercial Bank of Manchester, and indorsed by the payees to P. B. Pope, who indorsed it to the bank. After its maturity suit was brought on the note against all of these parties by the bank. Pending the suit the O’Reileys died, and the suit was abated as to them. Judgment after-wards, on the 5th of June, 1848, was rendered against the makers and Pope, who was the last indorser. Pope was compelled to pay the judgment, and instituted this suit in the Yazoo circuit court to recover from O’Reiley’s administrator the amount thus paid. That suit was commenced on the 15th of June, 1851. The defendant relied, in his answer to plaintiff’s petition, on the statute above referred to. The plaintiff demurred, and his demurrer was overruled; and the plaintiff, having declined to plead further, judgment final was entered against him on the demurrer.
It is very manifest, that until Pope paid the judgment he had no claim whatever against O’Reiley or his estate. Until that was done no right of action had accrued in his behalf. He certainly had none until the judgment was rendered against him. But O’Reiley had died before that was done. Pope’s demand for the money so paid cannot therefore be said to be “ a judgment or other cause of action” against the defendant’s intestate. It was settled by this court, upon mature deliberation, in the case of Bingaman & Staunton v. Robinson, Trustee, &c., (not reported,) that the first clause of the twelfth section of the statute above referred to, applies only to cases in which the cause of action existed against'the testator or intestate. Hence the statute was no bar to the action in this case.
Let the judgment be reversed, and judgment of respondeat ouster be entered in the circuit court.