Alexander v. Bryan
110 U.S. 414 (1884)

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U.S. Supreme Court

Alexander v. Bryan, 110 U.S. 414 (1884)

Alexander v. Bryan

Argued January 25, 1884

Decided March 3, 1884

110 U.S. 414

Syllabus

In Alabama, a plea which denies the execution by the defendant of an instrument in writing which is the foundation of the suit must be verified by affidavit, and the want of such affidavit may be reached by a demurrer.

In Alabama, the plea of nil debet in an action of debt on a bond with condition, where breaches are assigned, is bad on demurrer.

In Alabama, by statute, an action against the surety of an executor, for any misfeasance or malfeasance of his principal, must be brought within six years after the cause of action has accrued, and not afterwards, the time to be computed from the act done or omitted by the principal, which fixes the liability of the surety; and until there is a judicial ascertainment of the default of the principal, the liability of the surety is not fixed.

Such judicial ascertainment must be something more than an auditing of accounts, or an ascertainment or judgment that a distributee's share is so much, or that the distributee is entitled to so much. There must be a decree ordering payment and on which process to collect can issue against the principal.

A decree of a Probate Court, in Alabama, in 1864, finding that a distributee's share was so much, expressed in money, and had been invested in Confederate bonds, and ordering the executor to pay the amount in such bonds, was not a decree on which the executor could be sued to pay in anything but the bonds, or one on which a surety on the bond of the executor could be sued to pay in lawful money of the United States, and a failure of the executor to comply with such decree did not fix the liability of the surety.

Where a complaint in a suit against such surety does not state any facts to show the application of the limitation of such statute, a plea which does not state such facts is bad on demurrer.

An action by a legatee under a will against a surety on the executor's bond, to recover the amount of a legacy alleged to have been wasted by the executor. Plea nil debet and the statute of limitations.

Page 110 U. S. 415

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