Godbold v. Roberts , 20 Ala. 354 ( 1852 )

CHILTON, J.

The defendant in error, even conceding that the money sought to be recovered had been received by him from the administrator in chief, would not be liable, as administrator, to respond to the plaintiff.

The case of Burdine v. Roper, 7 Ala. Rep. 466, is directly in point, to show that this action cannot be maintained against the defendant in his representative character. If the administrator in chief, or the defendant as administrator de bonis non, had actually executed a note as such representative, for the payment to the plaintiff of the money here sought to be recovered, it is well settled that no judgment could be recovered upon it at law, to be levied de bonis intestatis, but the administrator would be personally liable; see Williams v. Hinkle, 15 Ala. Rep. 719, and cases there cited; 2 Wms. Exrs. 1089. If, then, the administrator could not have created by an express promise a legal liability against the estate, it is difficult to conceive upon what principle the law would raise an implied promise to Bind it, growing out of Ms tortious act in selling property which the statute reserves from' sale.

The first count being against the administrator de honis non, in his representative character, is clearly bad, and if the succeeding counts may be regarded as against him individually, this would make the whole declaration demurrable for mis-joinder of counts, and it is settled that such objection is reached by general demurrer to the whole declaration. If, however, the common counts, like the special count, be considered as charging the defendant in his representative, and not in his individual character, then they ^are obnoxious to the objection taken to the first count.

We deem it unnecessary to notice the other questions raised respecting the right of the plaintiff to sue. The view we have ■taken is decisive of the case, and shows that the demurrer to the declaration was properly sustained. See Anderson v. Rice, at this term.

Judgment affirmed.