Tait v. Frow

8 Ala. 543 | Ala. | 1845

COLLIER, C. J.

It is a rule of very extensive application, that where one admits a fact or deed, either by reciting it in an instrument executed by him, or by acting under it, he shall not be received to deny its existence. But when the truth appears from the same deed or record, which would otherwise work the es-toppel, then the adverse party shall not be estopped to take advantage of the truth. The obligors in' the bond declared on do not admit that Tait, the nominal plaintiff in the execution, was living; the recital which precedes the statutory condition merely states the fact, that Parkman, the principal obligor, was a prisoner in the jail of Dallas county, at the suit of Caleb Tait, use of E. W. Marks, &c. True, Tait, for the use of the same individual, is made the obligee, yet this was intended merely that the bond might conform to the statute, which provides, that “ Any prisoner imprisoned in a civil action may enter into bond with sufficient security to the plaintiffin double the sum of the.debt or damages, &c.” It cannot be said that the obligors have made any admission, either impliedly or expressly, in respect to the state or condition of the nominal or real party in interest. They admit that process, such as is recited, was in the sheriff’s hands, and that Parkman had been arrested under it; but whether that process was at the suit of a living man, or in despite of all objections is valid, are questions not within the scope of the act done, and consequently not concluded by it. This we think perfectly clear, when the character of the bond, and the circumstances under which it was prepared and executed, are looked to.

It is provided by statute, where any person shall institute a suit in the name of another, for his own use, the death of the person for whose use the suit is instituted, shall not abate it; but the same shall progress and be tried in the same manner as if the suit was instituted in the name of the person for whose use it was bi’ought. [Clay’s Dig. 313, § 3.] This act, it has been held, renders unnecessary the revival of the action, where the nominal plaintiff dies during its pendency; but it does not authorise the institution of a suit in the name of him who appears- to have the legal interest in the cause of action, if he is dead. Such a case is unaffected by statute in this State, and the personal representatives must, as at common law, be the actors of record. [Jenks v. Edwards, use, &c., 6 Ala. Rep. 143.] It is clear then, that the suit could not be instituted in the name of Tait aftej; his death; whether, as he was dead at the time the bond was executed, the legal interest enured to his personal representative, or vested in Marks, the beneficial plaintiff, are questions which are not now presented, and we consequently forbear to consider them.

In Jenks v. Edwards, use, &c. supra, it was held, that where a suit is brought in the name of one person for the use of another, the defendant may plead either in bar or abatement, that the nominal plaintiff was dead at the commencement of the suit. The objection to the plea, that it does not allege that Tait died after the bond was executed, or if previously, that the defendant was then ignorant of the fact, is sufficiently shown by the view taken, not to be defensible.

, It results from what has been said, that the judgment must be affirmed.