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JULY 1829.

“Wherefore it is considered by the Court now here, that the said Thomas Richardson, junior, surviving partner as aforesaid, do recover under the award aforesaid, which is

Tankersley made the judgment of the Court, the aforesaid sum of Richardson. $160 80, together with his costs, by him about his suit, in this behalf expended.”

The above, comprises the whole record, as certified. The term of judgment does not appear; except that the title of the record reads thus: “Pleas before the Honorable Abner S. Lipscomb, Judge of the first Judicial Circuit of the State of Alabama, holden in and for the county of Mobile, at the April term of said Court, in ihe vear 1826.”

Tonkersley, here assigns for error. 1. That there is no endorsement of the cause of action on the writ, as required by statute. 2. That there is no declaration, or cause of action set forth. 3. That the persons named as arbitrators do not appear to have been appointed by the parties or with their conscnt. 4. That the arbitration does not appear to be between the parties to the action. 5. That no term is expressed in the record, at which judgment was rendered.

Acre, for the plaintiff in error, argued, that by the statute, a the cause of action must be endorsed on the writ; a laws of Ala. that it therefore bec me an essential part of the writ, which, Minor's Ala. without such endorsement is a nullity. That a declaration is necessary, in order that the judgment on the cause of action therein set forth may be pleaded in bar to another action for the same matter. That it is determined by arbitration, does not vary the rule, because the same reason still exists. But here, there is no submission to arbitration, either in the form of an agreement, or by order of Court. The statement of the clerk that arbitrators were appointed, is no proof of that fact. A copy of the order of reference if any, is the only evidenre that is proper.

The case of Jones v. Acre, decided in this Court, sus. Minor's Ala. tains the position taken under the last assignment of error, as to the term of the Court when judgment was rendered not appearing in the record.

R. 102.

R. 5.

By JUDGE COLLIER. Five several matters, assigned for error in this cause, are presented for our consideration. By an act of 1907, entitled “an act establishing Su- « Laws Alaperior Courts, and declaring the powers of the Territorial 453. Juriges," the clerk or plaintiff's attorney, is directed to endorse on the writ the cause of action, and the sheriff is di

JULY 1829.

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rected on executing the writ, to deliver to the defendant a

copy of the endorsement. The statute does not consider Tankersley

the eodorsement as an essential constituent of the suit: it Richardson. rather seems to consider them as siistinct, vet, at some

stage of the proceedings, perhaps dependent for their legal offices on each other; without therefore pretending to determine how far such objections as appear on the original process, are available on error, the Court have no difficulty in attaining the conclusion, that an exception cannot be taken to the want of an endorsement, after the return term of the writ.

The sufficiency of the second assignment depends on the consideration which the Court may give to those that follow; if the award is sustainable, there cannot be a doubt, that no declaration is required!

The adjustment of controversies and suits by arbitration, is a species of remedy much favoreil by legis ation; so much so, that, not only what can be, is intended in its favor, but it will not be permitted to be impugnel for any ex trinsic cause; unless it be founded in corruption, partiality, or other undue means. This is the consideration in which awards are holden in the Courts to which they are returned. This Court must, in accordance with a rule repeatedly laid down, not only intend in favor of the award, but of the judgment below, every circumstance or point which the record warrants, that is necessary to legitimate the action of the Court. It may infer, that the award was made the judgment of the Court, (the reverse not appearing,) by the consent of the parties; and if it was, an order of reference is dispensed with, and the judgment is tantamount to a judgment by confession, and cannot be erroneous in point of fact. It is however the opinion of some of the members of the Court, that the entry on the record, preceding the award and judgment, is in itself an order to refer the cause. It is needless to inquire, whether the

entry of the reference and judgment is sufficient, within a Laws of Ala. the act of 1799, entitled an act concerning defalcation,

as

it may well (and perhaps most rationally) be intended, that the judgment was by consent. The fourth and fifth assignments, are not, it is conceived, sustained by the record. The identity of the parties in the writ and judgment sufficiently appears. The caption of the record shews when the judgment was rendered, and it appears from other facts in the record, that the writ of error is not barred by the statute of limitations.

457.

The Court are therefore of opinion, that the judgment JULY 1929. below must be affirmed.

Tankersley The CHIEF JUSTICE, not sitting.

Richardson. NOTE.-See the case of Mendenhall v. Smith, Minor's Ala. Rep. 380 ; also, 1. Stewart's Rep. 152, 244.

v.

King v. GREEN, et al.

1, The intermarriage of an administratrix, with an obligor in a bond paya

ble to her as administratrix, does not extinguish the debt, but merely suspends the right of action during the coverture, and while she continues

administratrix. 2. A bond made payable to an administrator as such, is assetts in the hands

of an administrator ile honis non. The description will not be considered

as mere descriptin persona. 3. Where in open Court, it is consented that the papers shall be taken out

by the Judge, and that a judgment be rendered in vacation, as of the preceding term, and judgment is so rendered, it is a surticient and final judge ment; at least it is sufficient to sustain a writ of error thereupon taken.

George C. King, sheriff of Perry county, and administrator de bonis non, by virtue of his office, of John Bass, deceased, brought an action of debt in Perry Circuit Court, against Jetson Green, B. W. Holliday, and John Welsh, to recover of them the amount due on a sealed note made by them.

The declaration was in the detinet, and contained two counts. In the first count it was avered, that the defendants, Jetson Green, B. W. Holliday, and J. Welsh, on the 13th December, 1922, made and sealed a specialty, promising to pay twelve months after the date, io Julian Bass, administratrix, and to M. Holliman, administrator of John Bass, deceased, or their assigns, four hundred and forty-four dollars and forty-five cents, for value received; that Julian Bass was the administratrix, and M. Holliman the administrator of John Bass, who died intestate; that Julian Bass intermarried with Jetson Green, one of the obligors, who thereby became also an administrator in right of his wife Julian, and entitled to the administration jointly with Holliman; that afterwards, on the 6th of May, 1925, the letters of administration as to Julian and her husband, by the Orphan's Court of Perry county, were revoked, and were surrendered; and on the 20th of the same month, the letters of administration as to Holliman were also surrendered

JULY 1229.

to said Court; that afterwards the administration of said

estate was committed by the said Orphan's Court to J. B. King

Nave, then sheriff of Perry county, and that the plaintiff, Green. King, was at the commencement of the action, and still is

the successor in office of Nave, as sheriff, &c. The second count was the same, with the exception that the intermarriage of Jetson Green with Julian was not mentioned, nor his administration, but Nave was alledged to have succeeded Julian Bass and M. Holliman in the administration, &c.

The defendants filed a general demurrer to the declaration. It appears by the record, that at November term, 1996, it was agreed by the counsel, that the cause should be argued at Bibb Circuit Court, and that the judgment should be entered on the decision of the Judge there, as of November term of Perry Court. On the 24th of November, Julge Gayle, who presided, returned the papers, with his decision thereon in writing, sustaining the demurrer, and rendering judgment for the defendants; which was recorded.

This judgment was by King, the plaintiff, here assigned for error.

BARTON and STEWART, for the plaintiff in error, aral Chitty's P. gued, that the demurrer should have been overruled; that 24, 23. Croke the marringe of Julian the administratrix, with Jetson 1 Com. Dig: Green, operated only as a suspension of the right of action Ab: 329930. during the coverture, and while her and her husband Toller'sĖx'rs were entitled to the administration; but that the debt was 223; Acts of not thereby extinguished; that the absolute rights of the bLaws of Ala. parties were not affected by her marriage with an obligor; a 324. 7 T. R. that the bond was assets in the hands of the administrai Chit. tor de bonis non; b the names of the payees are not mere decsriptio persona;

c that the second count was Ex'rs. 4:38. Minor's clearly good; as no marriage there appears, it is free from

any objection whatever; that the demurrer being gene5.Con. Dig. ral, to the whole declaration, and at least one count being dl. Stewart's good, it should have been overruled, a

II. G. Perry, for the appellees, argued, that the demur rer was properly sustained; and in addition thereto, that the writ of error should be dismissed; that the judgment not having been rendered in term time, it was not final, but merely an order for judgment, requiring another act of the Court to perfect it; that no ju Igment can be entered in vacation, the statute requiring the minutes or re

178. 1 T. R.
489.
Pl. 13. Tol-
ler's

Ala. R. 206.

R. 231.

JULY 1829,

King

cords of the Court to be read every morning, and signed on the last day of the term by the presiding Judge. a The order should have stood over till the next term, and then a judgment on it could have been rendered by the Court, such as the statute requires.

Green.

a laws of Ala. 167. Act of 1819.

By JUDGE WHITE. In the opinion of the Judge who presided in the Court below, and which is filed of record, the case is assimilated to one, where, in a note given to an administrator, he becomes security for himself. In England, when a creditor appoints his debtor executor, when his own creditors will not be injured, and there is nothing expressed in the will to the contrary, it will operate as an extinguishment of the debt, on the principle that from such an act of the testator, it may reasonably be infered, that such was his intention. In that case, the party himself acting in his own right, having destroyed the remedy, it is forever gone. But it is otherwise where administration of the estate is committed by the act of the law to a debtor. There the remedy is only suspended for a time, by the legal operation of the grant. Thus, if the obligor of a bond administer to the obligce, and die; a creditor of the obligee, having obtained administration de bonis non, may maintain an action for such debt against the executor of the obligor. So, if the executrix of an obligee marry the obligor, such marriage is no release of the debt, and the husband may pay it to the wife in the character of executrix; and if he do not, the remedy is suspended only, by the legal effect of the coverture; and on her death, the administrator de bonis non of the testator will be equally entitled to that debt, as to any other outstanding. In the first volume of Chitty's Pleadings, it 6 Toller op is said, c that if an executrix marry a debtor to her testa

272, for, the right of action is only suspended during the cover- c Vol. 1, p. ture; and if she survives, she may, in the character of executrix, sue the representatives of the husband, as the wife surviving is entitled to all actions in auter droit. From these principles it results, that if the bond on which tiris action is founded must be esteemed assets in the hands of the administratrix, or in other words, if she held it in auter droit, then her marrying one of the obligors would only suspend the remedy, but not destroy the right. In the book last cited d it is expressly laid down, that an ex- d Page 13. ccutor may sue as such, upon a contract made with him in 1hat character, as for goods sold by him as executor, and

Ex'rs. 273.

99

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