4 Miss. 176 | Miss. | 1839
delivered the opinion of the court.
The plaintiff instituted this action on the written promises of the defendant, made by him as executor, and the question is, whether he is liable in that capacity, or individually?
■ By first laying down the principles of law, we can the more readily make an application of them to the case before us.
■ An executor is individually responsible, although he expressly promise “as executor,” where the nature of the engagement necessarily creates an individual liability. For example, for money had and received, for money due on an account stated, when it does not appear that it was for money due by the testator; on a promissory note or other written contract, when it does not clearly appear that it was given or made for a debt or liability of the testator, or if it be made to pay at a future day with interest, which necessarily makes it the debt of the executor individually. Powell v. Graham, Executor, 7 Taunt. 581; Childs v. Monins & Bowles, 6 Eng. Com. Law Rep. 200; Chitty on Contracts, 84.
The first contract set out in the bill of exceptions, follows an
Judgment reversed, cause remanded, and venire de novo awarded.