Spence v. Rutledge

11 Ala. 590 | Ala. | 1847

COLLIER, C. J.

Both the defendants against whom the judgment was rendered, appear by indorement on the writ to have acknowledged its service. The judgment entry commences thus — “ This day came the plaintiff by attorney, and service being proved, and discontinued as to Elrod, on whom process was not served — and the defendants being called came not, but taade default.” We think it perfectly clear, from the recital, that as to all the defendants against whom process was issued, except him as to whom a discontinuance was entered, the service of the writ was proved.;

It is not necessary, in declaring upon a writing obligatory, to alledge its delivery to the obligee; it will be inferred from his possession, that it was duly delivered, and if the reverse is true, it devolves upon the obligor to prove it, if it can avail him any thing.

In King v. Green, 2 Stew. Rep. 133, it was said that bonds and notes taken by an executor or administrator, for the estate of the testator, or intestate, which has been regularly sold, are to be “held by them, not in their own right, but as assets in the right of others. And hence, upon their death, resignation, or removal, such notes and bonds would pass to those intrusted with the further administration, as part of the estate unadministered.” The case of King and Clarke v. Griffin, use, &c. 6 Ala. Rep. 387, is unlike the present. There the action was brought in the name of the payee of a promissory note, for the use of another person. The payee was described in the note as the sheriff and administrator of the estate of J. C., &c. A demurrer was interposed to the declaration, upon the ground that the beneficial plaintiff was shown to be the successor in the administration, and the suit' should have been brought in his name. We said, “ it has been repeatedly decided, that the assets which come to the hands of an administrator pass to his successor, if he dies, resigns, or is removed, before he administers them. Under the influence of this principle, the administrator de bonis non, becomes entitled to the bonds, notes, &c. which his predecessor had in his hands when his representative functions ceased.” It was however decided, that although the payee may have held the note as the administrator of the intestate named in it; yet as it could not be assumed from the declaration, that the beneficial plaintiff, succeeded him in that trust, the demurrer was rightly overruled.

True in the case before us, the declaration does not contain a formal allegation that the writing on which it is founded was assets in the hands of the obligees, but it is strongly intimated in King v. Green, that this is inferrible from what appears on the face of the paper. Be this however as it may, we think it is substantially alledged, that it was due to the obligees in their representative character, and upon their removal from the administration, passed to the plaintiff as their successor. Looking to the entire declaration, we think it so satisfactorily shown that the obligees are not without meaning designated as “ executrix and executor,” but it was intended to show the character in which they were contracted with, and were to receive the money. This being so, there is no difficulty in understanding why the writing was passed over to the plaintiff as part of the assets of the testator’s estate. Let this view suffice to show, that the declaration is free from error. The clerk will compute the interest upon the cause of action, from the time of its maturity up to the rendition of the judgment in the circuit court, and if too much damages have been adjudged, he will make the appropriate correction as the statute directs, at the cost of the plaintiff in error; in other respects the judgment is affirmed.