
    Sarah Barnes, executrix of John Barnes, deceased, vs. H. L. Jarnagin.
    To warrant a judgment against the representatives of a deceased person, there must be service of process upon all of them; it is therefore error, in an action of assumpsit, against an executor and executrix, fouhded upon a liability of the testator, where the process was served only upon the executrix, to discontinue the action as to the executor, and take a judgment by default against the executrix.
    In error from the circuit court of Noxubee county; Hon. A. B. Dawson, judge.
    H. L. Jarnagin sued James H. Mosely and Sarah Barnes, alleging them to be executor and executrix of John Barnes, deceased, for one hundred dollars due by the testator for professional services, as attorney at law, rendered. The writ was returnable to the December term, 1846, and was indorsed, “ Executed on Sarah Barnes. J. H. Mosely not found in my county.” At the same term the record recites, that the plaintiff, “ dismissed as to the defendant James H. Mosely, executor, and the other defendant, Sarah Barnes, being solemnly called, &c.,” made default, <fcc.; judgment by default with a writ of inquiry was accordingly taken, the writ executed, and a judgment final entered against the executrix; from which she sued out this writ of error.
    
      A. W. Dabney, for plaintiff in error.
    
      Guión and Baine, for defendant in error.
    I. We suppose the error that will be insisted on in this case, is the discontinuance as to Mosely. . By the terms of the statute of jeofails, the error, if any, is cured. See Hutchinson’s Statutes at Large, p. 848, sec. 91, 92, 93, 99.
    2. Upon general principles,1 and independent of the statute, we do not conceive there is any error. The judgment by default shows there is no merits; and before this can be held as an error, it must appear in the record, by plea in abatement, that the other executor was. alive and administered. See 1 Saund. R. 291, k. _ .
    There is nothing better settled than that a payment of the judgments by the executor against whom they are rendered, would be a good discharge of thé • debts, and a lawful acquittance to the estate. The books are full of authority that a receipt from or to one executor or administrator is valid. Now, if the appellant has no merits, as the judgment by default shows, and her payment of them would be valid and legal, where is the error?
    3. But there is another important view to be taken of this case. A positive error must be pointed out before the court can reverse. A judgment cannot be reversed upon an inferential error, not based upon a fact in the record, but on a presumed state of facts which may have existed out of it. To reverse this judgment, you must presume that Mosely was an executor, and from this infer your error. Granting him to be a necessary party, you must presume a fact from which to deduce error.
    Where do you found your presumption? Doubtless upon the fact that the writ issued against Mosely. Is that evidence that he was executor? No; but it is a presumption. Suppose it that low estate of evidence which the term presumption really represents; that it, amongst other facts, tends to a certain conclusion. Then let us balance .presumption, and see how the case stands. The naming Mosely in the suit is a presumption that he was an executor; and the dismissal of the suit as to him, is a presumption* that he was not. These are equally fair and equally potent, and they certainly destroy each other, and leave nothing upon which to base a conjectural error in this record.
    
      4. The only authorities we have been able to find upon this subject are to the point that a service upon one administrator or executor authorizes a judgment upon all, where there are several. If this be so, it certainly authorizes a judgment against one upon whom process is served. Howard v. Daniel, 6 J. J. Marshall, 125; Moore v. Paul, 2 Bibb, 330; Dickerson v. Robinson, 1 Halst. 195.
   Mr. Justice ThacheR

delivered the opinion of the court.

This is an action of assumpsit instituted against James H. Mosely, executor, and Sarah Barnes, executrix, founded upon an open account contracted by the testator of the defendants in the circuit court. Service of process was had upon the executrix only, and she failing to appear and plead, the action was thereupon discontinued as to the executor, and a judgment as by default and a writ of inquiry, with a finding and judgment thereon, were entered against the executrix.

This case fully presents to us the question, whether to warrant a judgment against the estate of deceased persons, represented by two or more executors or administrators, there must not be service against all of those representatives. This point as yet has not been fully determined in this court, although it has been incidentally remarked upon in the case of Breckenridge's Adm’r. v. Mellon’s Adm’r., 1 How. 273, and in that of Woodward, Judge, &c., use, &c., v. Brown’s Adm’r., 11 S. & M. 303. We have held, that in order to render a judgment against partners valid, there must be service upon or appearance by all the partners. This is because the judgment is binding upon them jointly, and severally, upon the partnership fund and their individual property. It is true that executors or administrators fill but one office, that the act of one is the act of all, and that a judgment against them is binding only upon the estate, but the object of this representation of an estate is for its benefit. The law permits more-than one executor or administrator to be intrusted with the settlement of an estate. This rule may have been adopted from the complexity of the business of some estates, or from the fact that more than one person may be required on account of their intimate acquaintance with the various affairs of such estate. Matters thus may be within the knowledge of one executor or administrator, relating to the concerns of an estate, which are entirely unknown to his co-executor or co-administrator; matters of payment, of set-off, or of full defence. The law surrounds the estates of decedents with its best protection, and indulges their representatives with favorable rules as to their pleadings and practice. We conceive that great injury might accrue to estates by adopting any rule which would deprive them of the benefit of the information in the breast of all of their representatives.

In the present case, the judgment -was erroneously taken against but one of the representatives, and it was erroneous to have discontinued the cause as to the executor not served with process.

Judgment reversed, and cause remanded for further proceedings. »  