Eichelberger v. Morris

The opinion of the Court was delivered by Sergeant, J. If a creditor makes his debtor executor, it is an extinguishment of the debt, for he cannot sue himself: and being a personal action, if once suspended it is gone forever. 3 Bac. Abr. 11; tit. Executors, A. 10. But though it is a discharge of the action, yet the debt is assets, and the making him executor does not amount to a legacy, but to payment and release. If H. be bound to J. S. in a bond of J100, and then J. S. makes H. his executor, H. has actually received so much money and is answerable for it; and if he (does not administer so much, it is a devastavit. Per Holt, C. J. Salle. 306. That is, as he afterwards adds, where there is an acceptance of the administration by the executor, or, in case several are appointed, by some of them. Ibid. See also Thomas v. Thompson, 2 Johns. Rep. 473. Dr Morris appointed Thomas Eichelberger, the principal co-obligor with Frederick Eichelberger in the bond, to be one of his three executors, and the executors administered. This was a release of the bond to Thomas Eichelberger, and of course a release and discharge of Frederick his co-obligor and surety. The amount of it thereby became assets in the hands of Thomas Eichelberger, for which he was accountable to creditors and legatees of the testator, as so much of the moneys of the testator in his hands to be administered: but the bond itself, the source whence this amount of assets came, was extinguished. Not only so, but it appears that in 1815, several years after the death of Dr Morris, the executors settled an account in which they charged themselves with the amount of this bond, thereby agreeing that it was paid into their hands. In 1828, Jacob Hay, one of the executors, delivered up the bond to the legatees in part payment, taking a release from them, and in 1830 the other two executors were discharged, on the ground that they had never received any of the estate, and the present plaintiffs were appointed administrators of the testator, and bring this suit against the de [44] fendant, the co-obligor and surety. It is questionable whether these proceedings would not have discharged the surety, even had the co-obligor with the defendant been a third person and not one of the executors. For the executors had all made themselves chargeable in account for the amount of the bond, and were released by the acts of the legatees. But on the other ground the bond was clearly extinguished. Judgment affirmed.