34 Tex. 388 | Tex. | 1871
It is admitted that the note sued on was executed, by Kemp and Locker as securities of Slane. Slane died before the commencement of suit; Locker is also dead, and his estate is properly represented in the action. After the death of Slane, the note was presented for allowance; to his administrator, who neglected, under pretence of consulting his attorney, either to reject or allow the claim, and no suit was brought within the ninety days allowed by law. .
It is claimed, under articles 1311 and 1312, Paschal’s Digest, that the neglect of the administrator to indorse his rejection or refusal on the claim was equivalent to a rejection, and that the failure to sue discharged the securities. But we must take another view of the case; it is that presented in Scott v. Dewees, 2 Texas, 153.
On the death of Slane, Kemp and Locker became primarily liable on the Scantlin note. Slane being dead, he was no longer within the jurisdiction of the court, and the holder of' the note could then sue the securities; so that it was totally unnecessary to present the note at all to the administrator of Slane, for allowance.
The judgment of the district court will be reversed, and a judgment entered for the amount of the note, with eight per cent, per annum interest. ■
Reversed and rendered.