The agreement of counsel endorsed upon the transcript is so ambiguous that will not undertake to construe it..
This is an action by Daughtry, as administrator of J. J. Parker, deceased, against H. Z. Parker for the price of goods sold by the plaintiff, as such administrator. The defendant’s plea No.l plainly avers that plaintiff’s intestate, at the time of his death, was indebted to defendant $975, for rent of a store house in Ozark, in which the goods purchased were kept for sale by intestate as defendant’s tenant, up to the time of his death; that after his death plaintiff, as administrator, took charge of the goods and said storehouse, and rented the house from defendant for four months for the purpose of storing and disposing of the goods, *531agreeing to pay defendant therefor, $35 per month, and that the goods, the price of which is sued for in this action , were, by the terms of the contract, sold by the plaintiff to the defendant in payment and satisfaction pro tanto of said claims for rent. There can be no question that, if these averments were true, the plaintiff could not recover. It was not a question whether the plaintiff as administrator, could lawfully make such a contract and disposition of the intestate’s goods. By suing upon the contract he conclusively affirmed its validity, and would not be heard to repudiate some of its terms while seeking -to enforce others. He should take the contract as he made it, or not at all. The court erred in sustaining the demurrer to the plea.
The other pleas were set off of the rent demands. To them plaintiff replied the declaration of insolvency of the estate and that the claims were not filed against the insolvent estate, as required by law. The trial took place more than nine months after the declaration of insolvency, and the claims were not filed. They were consequently forever barred and extinguished, and could not be allowed as a set-off, as was expressly held in Bell v. Andrews, 34 Ala. 538; Walker v. Tyson, 52 Ala. 593, and Shelton’s Admr. v. St. Clair, 64 Ala. 565. The debt being extinguished by the failure to file the claim, all liens which it supported fell with it; — Ray v. Thompson, 43 Ala. 451; Watson v. Rose, 51 Ala. 292; Halfman v. Ellison, 51 Ala. 543; Thames v. Herbert, 61 Ala. 340, and authorities supra.
The defendant was allowed credit by the jury for the four months rent contracted by the .plaintiff.
It appears that in one respect, the court, ex mero mo tu, charged the jury upon the effect of the evidence. In respect .of the defense of set-off, the issue made by the pleadings was the declaration of insolvency and failure to file the claim velnon. The credibility of the evidence upon all issues to be tried by the jury must be submitted to the jury, even in written charges given on request ; and the statute expressly forbids the court to charge, without request, upon the effect of the evidence, even though its credibility be submitted to the jury. For the errors mentioned the judgment must be reversed and the cause remanded.
We remark, that this is not an appropriate proceed*532ing to litigate the question of defendant’s lien as landlord .' The declaration and pleas of set-off stand upon the merits of their respective claims, as subsisting personal demands, pro and con, without regard to any securities held bv either. If defendant’s claim, interposed as a set-off, was not filed within nine months after .declaration of insolvency, as a claim against the estate, it was destroyed, and that is the end of it. Administrator’s torts can not be pleaded by way of set-off to his suits in his representative capacity, not even by waiving the tort and suing in assumpsit. He can not, in his representative character, commit a tort, to be waived.
Reversed and remanded.