Francis F. L'Engle, Appellant, vs. Edward M. L'Engle and Theodore Hartridge, as Administrators of John P. Sanderson, Deceased, Appellees, 19 Fla. 714

Mr. Justice Westcott delivered the opinion of the court: The action here is by Sanderson’s administrators in their representative character against the appellant upon a promissory note given by him to them in their representative capacity for money assets of the estate borrowed by him of them. The-appellant admits these facts in his plea, and by way of setoff sets up an indebtedness of the administrators to him for work and labor performed by him as an attorney and surveyor in connection with Sanderson’s estate at the request and instance of the administrators.

To this plea a demurrer was sustained and from this judgment this appeal is taken. The principal question, therefore, for us to determine is whether services performed for an administrator for the estate which he represents can be set off in a suit by the administrator in his representative capacity for moneys of the estate lent by him as administrator to the defendant. The law is that an administrator may sue in his representative capacity upon such a contract, and he will be chargeable with the proceeds as assets. Branch vs. Branch, 6 Fla., 323 ; 1 Chitty’s Pleading, 16 Am. Ed., 226 ; Sheets vs.

Pabody, 6 Blackf., 122; Hemphill vs. Hamilton, 6 English, (Ark.) 426 ; Abingdon vs. Tyler, 6 Cold., 502 ; 2 Williams on Executors, 6 Am. Ed., top page, 949, 952. While at the same time his creditor cannot recover a judgment de bonis intestatoris in a suit against the administrator. The judgment in the suit of his creditor is de bonis propriis. Branch vs. Branch, 6 Fla., 325.

The general rule is that an administrator can make no new contract in his representative character to charge the estate of the testator, and for any breach of a new contract entered into by him as administrator subsequent to the death of the intestate he is only liable in his individual capacity. May vs. May, 7 Fla., 220 ; McHardy vs. McHardy, 7 Fla., 317 ; Branch vs. Branch, 6 Fla., 325 ; Davis vs. French, 20 Me., 23. There cannot in such case be a judgment to be satisfied out of the assets of the intestate.

To allow this plea here to prevail would be equivalent to a judgment pro tanto of payment from the assets of the intestate which cannot be. Such a set-off cannot be sustained as the claim is not in the same right. Harbin vs. Levi, 6 Ala., 399; McEldery et al. vs. McKenzie, 2 Porter, 36 ; Turner vs. Plowden, 2 Grill. & John., 457 ; Waterman on Set-off, 187. It must be apparent also that a power in the administrator to bind the assets of the intestate by his personal contracts in reference to the estate would materially interfere with the due course of administration of the estate.

If the administrators had paid this claim the matter would then have been the subject of consideration and action by that forum to which such jurisdiction appertains. The only other objection made to the judgment in this ease is that the final judgment entered after default in pleading for want of a plea or demurrer is erroneous. This we think was clearly error. There was here no default in pleading.

Where the judgment should be final upon the demurrer both the statute and the rules contemplate that such judgment shall be rendered, and if it is an action in which the clerk can assess the damages, and this is such an action being assumpsit upon a promissory note, such final judgment should be entered. In this case it is apparent that the defendant rested upon his demurrer and proposed neither to amend his plea nor to file any other plea.

Section 9,

Chapter 1938, Laws, provides that a demurrer may be heard in vacation, “ and the Judge may in vacation make any order in regard thereto and consequent upon his determination of the issues of law presented that he could in term time,” and Rule 29 of the Circuit Court in common law actions contemplates a final judgment by prescribing regulations for amendment of the pleading.

Neither the statute nor the rule contemplate an imparlance except in cases where the disposition of the demurrer is “ otherwise than by final judgment.” Such judgment is the judgment of the court to be entered by the clerk upon the order of the Judge in the same manner as such judgment would be entered in term time, the clerk assessing the damages. There is in this record no such order of the Judge, and the judgment is entered by the clerk in vacation here without the order of the Judge in a case where such order is required by law.

The judgment is reversed and the case will be remanded, with directions to enter a judgment in conformity with the views expressed in the opinion herein rendered.