Wynn v. Booker

26 Ga. 553 | Ga. | 1858

By the Court.

Benning, J.

delivering the opinion.

The action was founded on an account, i. e. a debt, contracted by the testator in his lifetime. In reference to the account or debt, then, the testator was a contractor.

The three executors represented the testator, in reference to the account or debts; and an action ex contractu, as, assumpsit or debt, lay against them jointly for it. Therefore, they too were, in law, contractors in reference to its joint contractors. Indeed, it is not clear, but that the oath which they took, made them joint contractors in fact, as well as in law. They swore, that they would pay “firstthe debts and then the legacies.” Pr. Big. 227.

But if the executors were joint contractors, the case was one falling within the Act of 1820, which declares, “that wherever two or more joint contractors or copartners, are sued in the same action, and a service shall be effected on one or more” of them, “ and the Sheriff” “ shall return, that the other defendant or defendants are not to be found, it shall and may be lawful, for the plaintiff to proceed to judgment and execution against” those served. Pr. Dig. 445. We think the case one falling within this act.

And all was done that the Act required tobe done. Two of the executors were served; anda return of, not tobe found, was made as to the third, by the Sheriff.

Therefore, we think, that the Court below erred in sustaining the motion to dismiss the action.

This makes it unnecessary to consider the other exceptions.

Judgment reversed