#### Rust Exr. vs. Witherington.

Under our administration system, an executor de son tori, as at common law. is unknown. {Bamsisn vs. Odum.)

Appeal from the Circuit Cov/rt of Union County.

Hon. Shelton Watson, Circuit Judge.

QuilliN and S. H. Hempstead, for tbe appellant.

Mr. Justice Hanly

delivered tbe opinion of tbe Court.

This was an action of assumpsit, brought by tbe appellee against tbe appellant as executor de son tort of Alfred Bust, deceased, in the Union Circuit Court, on a promissory note averred to have been made by tbe decedent to the appellee.

The appellant interposed his three pleas in bar to the appellee’s action in tbe court below, to wit: non assumpsit, ne vmques executor andplene administravit, to which issues were taken, and a trial of those issues was bad before a jury, who returned a verdict for tbe appellee for tbe amount of tbe note declared on, and interest by way of damages. The court proceeded to render judgment on said verdict against appellant, de boñis testatoris, si non, de bonis propriis. A motion for a new trial was made in tbe court below by the appellant, and on its being overruled, he excepted, setting out all the evidence given at the trial, and saving several exceptions reserved during its progress. We do not, however, deem it essential to make a further statement of the case. The cause is brought to this court by appeal.

Several errors are assigned and insisted upon, why said judgment should be reversed, and among them the same question is *130presented, as- tbe one we have just determined in the case of Barasien vs. Odum. We, therefore, reversejjthis cause for the reasons assigned for reversing that one.

The judgment in this cause as rendered bj the Circuit Court differs from the judgment rendered in the case of Barasien vs. Odum.

The party attempted to proceed in this action according, to the practice of the common law. There was an issue formed upon the plea of ne unques executor, and this issue was found for the appellee. In such case, it was the practice in a proceeding against an executor de son tort, to render judgment de bonis jpropriis. See Toller’s Exrs. 473. But as we have held in the case of Barasien vs. Odum, our statute has changed the common law in this particular. With us, persons sued as executors or administrators, are not made personally liable in any action; nor shall persons sued as executors of their own wrong, be made liable to a greater extent than they would otherwise be by reason of any such person having pleaded any false plea. See Dig., sec. 70, chap. 125, p. 807. Yiewing this judgment, either according to the principles of the common law, or in reference to our statute, it is erroneous for the reason of its particular structure.

For these causes, the judgment of the Union Circuit Court is reversed, and the cause remanded thereto with instructions to that court to proceed therein, according to law, and not inconsistent herewith.