Hall, Weeks & Co. v. Darrington

GOLDTHWAITE, J. In Caruthers v. Mardis’ adm’r, 3 Ala. Rep. 599, the action was against two administrators, and we held the promise of one to pay the debt, was not sufficient to prevent the operation of the statute of limitations. The reason given in the books is, that one administrator has not the power to bind those connected in the administration so as to make them responsible for a devastavit. It is a mistake to suppose the case of Tulluck v. Dunn, R. & M. 416, is the only one in which this doctrine is recognized. In Elwell v. Quash, Strange, 20, one of three executors gave a warrant 'of attorney to confess a judgment against himself and his co-executors,' upon which the party entered a judgment against him de bonis propriis and against the others de bonis t'estatoris. This was afterwards set aside as irregular for the reason before stated. Whether upon a joint suit against all the executors, a several judgment may not be had against one of them, was not then decided, though it seems to have been so held in a case then cited, Baldwin v. Church, 10 Mod. 323. Whether there is or not any mode by which one administrator can be made liable upon his several promise — a matter we are not called on now to determine — it is very- clear the rule is not for his exemption, but is entirely personal to those ' who are joined with him. There is no question, we presume, but that a sole administrator may bind the assets of the estate he represents, by a promise to pay a debt barred by the statute, and we can perceive no reason why the same consequences should not flow from his prom [504] ises made pending a joint administration, if afterwards he becomes the sole representative of the estate. This conclusion involves the reversal of the judgment of the court below, as the charge is not consistent with it. Reversed and remanded.