MARTIN vs. NALL, 22 Ala. 610

GrOLDTITWAITE, J.- The cases which hold that an executor may sue in his own right, where the cause of action arises after the death of the testator, proceed upon the principle, that he is invested with the legal title to the assets. Hence, if he loans the money of the estate, he can recover in his individual capacity; for the legal title being in him, the legal interest in the contract results to him. So, also, where money belonging to the estate of the testator is received after his death, the executor may declare on the implied assumpsit, for money had and received to his use: Foxwist v.

Tremaine, 2 Saund. 208; Smith v. Barrow, 2 Term R. 477; and if one of the executors should make the loan, his co-executor would not be responsible, (Douglass v. Satterlee, 11 Johns. 16;) and he might therefore sue in his own name to recover it, without joining his co-executor,- (Brassington v. Ault, 2 Bing. 177;) and it could make no difference whether it was upon an express or implied contract.

But where tbe act wbicb originates tbe action can only be done by tbe executor in bis representative capacity, we do not see bow be can sue in bis own right; bow be can maintain a suit as an individual, upon a payment wbicb, if made by him in that capacity, would confer no right of action. This is in effect tbe reasoning of Lord Ellenborough, in Ord v.

Fenwick, 3 East 104, who, after putting tbe case of an executrix, suing as such, to recover money paid upon a judgment against her upon tbe obligation of her testator, on wbicb be was the surety of tbe defendant, says: “ She could not help paying money out of tbe assets, to tbe defendant’s use, wbicb be was bound to make good; and surely she may sue for it, and properly call herself executrix, in wbicb character alone she could have entitled herself to recover.

She' could not pay tbe money out of her own funds, and raise an implied assumpsit against tbe defendant; nor could she properly declare in any other character.” If, therefore, in tbe present case, tbe plaintiff sued in bis own right, be could not recover upon tbe evidence stated in tbe bill of exceptions; and if tbe action bad been brought by him as executor, tbe objection that tbe co-executrix did not join, would have been fatal. Williams v. Sims, 8 Porter 579; Bodle v. Hulse, 5 Wend. 313; Webster v. Spencer, 3 B. & A. 60.

Tbe charge of tbe court, although not strictly correct, as it assumes that tbe action might have been maintained by tbe executors suing jointly in their own right, yet, as tbe error could not have been prejudicial to tbe plaintiff, it furnishes no ground for reversal. The charge requested was properly refused, being in opposition to tbe views we have indicated. Tbe judgment is affirmed.