Dickey ex rel. Turney v. Trainer ( 1862 )

The opinion of the court was delivered, by

Lowrie, C. J.

The defendant gave the plaintiff a paper acknowledging that on settlement there was due by the estate of Michael Trainer to the heirs of Archibald Dickey $431, and signed it as administrator of M. Trainer’s estate. About four years afterwards he endorsed on the back of it a warrant of attorney to confess judgment against him as administrator of the estate of M. Trainer, for a balance still remaining due on it, and judgment was entered de bonis. The plaintiff claims that it ought to be absolute against the defendant personally.

We do not think so. The defendant was not so bound by the original paper, and it is a fair presumption that the confession was intended to 'be according to the previous liability. And we think it is expressly so, for it is against the defendant “ as administrator,” and this by itself is, under our law, never a personal judgment.

If the plaintiff thinks that the administrator, by other agreements or transactions, made himself personally liable, he ought not to have accepted the judgment on the warrant of attorney, but to have sued him by writ, and declared on his whole case, and then the liability would have been tried according to his allegations.

Judgment affirmed.