Easly v. Boyd , 12 Ala. 684 ( 1847 )

ORMOND, J.

There is no entry of record of the revival of this suit against the plaintiff in error, nor is there any question raised here whether such a suit as this can be revived under our statute. We shall therefore not enter upon the consideration of that question, but confine ourselves to the examination of the question, whether, under the process, any judgment could be had against the administrator in this ease.

The question of the liability of an executor to be sued in detinue, came before this court in Brewer v. Story’s Ex’r, 10 Ala. 961, and was there fully considered. It was held that the action could be brought against him, in his representative character, upon an allegation that the chattel sued for was in the possession of the testator, and after his death came to the possession of the executor, who detained it as such. From this it seems to follow conclusively, that if an action of detinue can be revived against the personal representative of the defendant, no judgment can be rendered against him, unless the chattel sued for, at the time of the suit brought, was in the hands of the deceased defendant, has since come to the possession of his personal representative, and is held by him as part of the personal assets of the estate. In this case it is shown, that the slaves sued for never came to the possession of the administrator, but were taken from his intestate previous to his death, in satisfaction of a bond by which they had been replevied. The refusal of the court therefore, to charge that no recovery could be had against the administrator, unless the slaves sued for had come to his possession, was clearly erroneous. Whatever other remedy the plaintiff may have against the personal representative, it is clear he cannot maintain detinue to recover a chattel which never came to his possession.

It is urged by the counsel for the defendant in error, that the act of 1830, (Clay’s Dig. 317,) requires the revival of the action of detinue against the personal representative, as, otherwise the plaintiff would lose the security afforded him by the replevin bond of the deceased. The design of the Le-lature in the act referred to, was doubtless to make the remedy by detinue more effectual, and to insure the production of the property, to answer the plaintiff’s judgment, in the event of his recovery, by requiring the defendant to give security for its production. But we are unable to perceive how this should authorize an action of detinue to be instituted, or maintained, against the administrator. This was clearly not within the contemplation of the legislature at the time of the passage of the act, and if the death of the defendant has disabled them from proceeding against the sureties on the bond ¡it is no reason for permitting a judgment to be rendered against the personal representative for the specific property, which he never had in possession.

As this point is decisive of the case, it is unnecessary to consider the other questions made in the argument. Judgment reversed and cause remanded.