Hill v. Josselyn.

THOMAS B. HILL vs. ROBERT JOSSELYN, State Commissioner.

The debts due the sinking fund belong to the state of Mississippi; a debtor therefore, to that fund, when sued by the state commissioner, cannot set up the statute of limitations in bar of the suit.

The sinking fund, prior to the act of February, 1844, was, by law, under the management of the auditor of public accounts, and of the president and cashier of the Planters' Bank; these persons were thereby created trustees, for what to some extent was a public purpose, and the act of a majority of them, therefore, in the conduct of the fund, it seems would be binding and authoritative, but the act of any one of them would not be without the sanction of one of the others.

It seems, however, in cases of private trusts and joint agencies, that all the trustees must join in the act.

IN error to the circuit court of Panola county; Hon. Hugh R. Miller, judge.

Fisher, for plaintiff in error.

Cushman, for defendant in error.

Mr. Justice CLAYTON delivered the opinion of the court. This was an action of assumpsit in the circuit court of Panola, to recover money due to the sinking fund. The first point presented arises out of a plea of the statute of limitations, to which there was a demurrer, on the ground that the state is the real plaintiff. It was decided by this court in Parmilee v. McNutt, 1 S. & M. 179, that the statute cannot be set up as a bar to an action by the state. It has also been decided that the sinking fund belongs to the state exclusively, and that an indebtedness to the fund is in truth a debt to the state. Young, Commissioner, v. Hughes, 12 S. & M. 106; The State v. Dickinson, lb.

583. It is a legitimate consequence, that this action is not barred.

Another question grows out of a plea of payment of $100, part of the debt demanded, to the auditor of public accounts, and an accord and satisfaction to him of the balance of said debt. To this plea also there was a demurrer.

The sinking fund was originally under "the management of the auditor, and of the president and cashier of the Planters' Bank." Hutch. Code, 311. The point presented by the plea is, whether a payment to one of the three managers, and a compromise with him, are valid and binding upon the state, without the knowledge or consent of either of the others.

In reference to joint powers, or joint trusts, some regard is due to their nature and character. The act of one co-executor is binding upon all, and upon the estate which he represents. Bodley v. McKinney, 9 S. & M. 357.

As a general rule, co-trustees cannot act separately, but they must all join in receipts for money payable to them in respect of their office. Hill on Trustees, 305. This is likewise the rule in regard to joint agencies. Story, Agen. 45. But there is this distinction, that if an authority delegated to several persons, be a private confidence, all must join; but if it was conferred for public purposes, it may be executed by a majority only. Comyn, Dig. Attorney, C. 11; Green v. Miller, 6 Johns. 41; Co. Lit. 181 b.

In this case the trust, created by statute, was to three persons. It was, however, in some degree for public purposes. We should incline, therefore, to the opinion, that the arrangement made in this case, and set forth in the plea, to be valid, must have received the sanction of at least a majority of the trustees. The act of one would not be binding, unless it were sanctioned by a majority. The decision of the court below, sustaining the demurrer to the plea, was therefore correct.

The same reason justified the exclusion of the receipt from the jury, as testimony.

The judgment is affirmed.

Waul v. Kirkman.

THOMAS N. WAUL, Executor of Thomas Hurd, deceased, vs. THOMAS KIRKMAN.

Where a new trial has been refused in the court below, and the question arises in the high court, as to whether the verdict is sustained by the evidence, that question will be, not, is the verdict clearly right, but is it manifestly wrong? If not the latter, it will not be disturbed.

The husband is liable for the debts contracted by the wife before marriage, but his responsibility continues only so long as the relation of husband and wife exists; if the wife die before a recovery, the husband's liability ceases. And it seems that a mere naked promise made by the husband during the existence of the marriage, without any new consideration to pay the wife's debt, contracted before marriage, would not enlarge the husband's liability; as it would be nothing but a recognition of his legal liablity.

Nor will an express promise in writing, by the husband, after the dissolution of the marriage, to pay such debt, bind him personally, without a new consideration to support it; and that consideration as well as the promise must be proved.

After the death of the wife, the husband, as to her debts contracted before marriage, stands in the attitude of a stranger, and can only be liable for them as for the debt of any third person; or if he be her executor, as any other executor would be made liable for the debts of his testator, viz. by an express promise in writing, founded on a new consideration, both of which must be shown.

After his marriage, the husband and a creditor of his wife had the indebtedness of the wife to the latter made out in the shape of an account, which was delivered to the husband who gave this receipt: "Received an account as stated above, and find it correct, March 6, 1843;" the wife afterwards died : Held, that this account and receipt imposed no personal liability on the husband; it neither changed the debtor nor the nature of the original debt. During the life of the wife, the husband wrote to a creditor of the former before marriage, in which he spoke of the debt that "we" (that is he and his wife) "owed him," and of the "understanding" between them as to its payment: Held, that this was but an admission of his liability as it then existed, and formed no foundation for an action against him personally after his wife's death.

After his wife's death, the husband wrote to her creditor before marriage, on

Waul v. Kirkman.

the subject of his wife's indebtedness, and his becoming executor of her estate, as follows, viz. "Before deciding, whether or not to undertake the executorship, I wish to confer with you respecting our debt. You know the condition of the estate; it owes no debts except some little accounts save to you; but the debt to you is very large, and if pressed to collection would sweep nearly or quite the whole estate; if five or six years can be given, and if crops should be good and the market favorable, the debt may be extinguished, and property enough retained to support myself;" in the succeeding part he expressed a desire to have an arrangement made that would give time, and said he could give his notes, secured by a deed of trust on the estate, &c. Held, that this was, at most, a mere proposition for forbearance; and did not contain a direct offer to become personally responsible in case it should be given; yet, even if an offer to become personally responsible on condition of forbearance, to make the husband liable, it must be shown in addition affirmatively, that the creditor acceded to the proposition as made, and extended the time.

In an action by the creditor of the wife before marriage, against her husband, instituted after her death to make him personally liable for the debt, he being at the same time her executor, it was held error in the circuit court not to instruct the jury at the instance of the defendant, " that the plaintiff's action for the whole or any part of the claim, could not be sustained on the will of the wife, as it gave the plaintiff no right of action at law;" the will, in this case, contained no clause or bequest which could make the husband personally liable for the debt.

On the trial of a suit against the husband after the wife's death, to make him liable for her debt, contracted before marriage, on the ground of his subsequent promise in consideration of forbearance to pay it, the circuit court refused to instruct the jury, that "if a person supposing himself to be liable for a debt, for which, in fact, he is not liable, in consideration of an extension of time promise to pay the debt, such promise is not binding for want of consideration : " Held, that under the facts the instruction was properly refused; though on the authority of Newell v. Fisher, 11 S. & M. 431, if the original claim for which the forbearance occurred, were not in itself sustainable at law, the party would not be liable on his promise in consideration of such forbearance.

While an executor is not bound to plead the statute of limitations, but may give evidence under the general issue of the bar, yet it seems he is bound to insist on such defence.

IN error from the circuit court of Yalabusha county; Hon. Francis M. Rogers, judge.

Thomas Kirkman, on the 6th of April, 1849, sued Thomas N. Waul, executor of Samuel Hurd, deceased, for the sum of

Waul v. Kirkman.

$33,000, due upon account stated between plaintiff and Hurd, in his lifetime, to wit, on the 6th of March, 1843. The defendant plead non assumpsit by his testator, with leave to rely under that plea upon any legal defence, which could be made by special plea or otherwise.

In addition to the facts stated in the opinion, it has been deemed only necessary to set out in full, the letters on which the plaintiff below principally relied to sustain his verdict. They are as follow, viz.:

HURD TO KIRKMAN.

30th September, 1843. Dear Sir Yours of the 14th came to hand the 23d, (our mail is only once a week,) and its contents having been duly considered, it is answered by the next following mail, which leaves here to-morrow. It is a matter of sincere regret to me, that you should be put to trouble on our account, but in the present posture of things I cannot prevent it. I am giving my whole energy to the business of the estate, and will do all that industry and economy can accomplish towards diminishing its indebtedness. There is now no probability that the crop will be sufficient to pay the full amount of your note in bank, for drought has greatly cut it short on the upland, and now excessive rains threatens as much mischief to the lowlands, besides injuring and wasting the cotton already open.

What I can pay I will, and if you wish it, I will send you a draft for the probable sum of the net proceeds, expenses &c. deducted, say $2000 or $2500. A larger bill would be paid only in part, and of course again to be protested. I am too far from Nashville to owe the bank. I am a stranger here, have formed no acquaintance scarcely. I have scarcely left the plantation since June, on account of Mary's dangerous state. I would not know who to ask to indorse for me, and cannot go away to attend to the business.

I received a reply from my commission merchants, refusing to accept my bill, and I applied to one here who would not accept my bill even to get my business. There seems, therefore,