5 Ala. 76 | Ala. | 1843
An administrator becomes personally liable for the debt of his testator whenever assets in sufficient quantity to answer the debt have come to his hands, and have been wasted or misapplied by him. Wheatly v. Lane, [1 Saund. 216.] The presumption, or rather the proof of assets, is usually deduced from the omission by the administrator to plead plene administravit, but we take it for granted that neither presumption or proof can arise from a judgment guando acciderunt, and it seems that the judgment given in evidence is entitled to no greater consideration.
It will readily be perceived that it is one of unusual character; it is given, if at all, by the statute of set off. [Digest, 281 § 126;] but conceding it to be regular, it cannot be construed as an admission of assets, for the reason that the administratrix has had no opportunity to shew the condition of her administration.
We are satisfied that no recovery can be had in this case, withT out showing assets unadministered at the time of the judgment, or
The judgment is reversed and cause remanded.