more than an equitable right, resting on an entry. This circumstance has not released him from the necessity of completing his payments, if any were due to the person of whom he purchased, and of perfecting his title.

Another circumstance that accounts satisfactorily for the non-payment of the money, is the death of Baker, before the claim of Gilliland, &c. was decided, and the subsequent disavowal of the contract by Mrs. Cowper his successor in the administration. From the death of Baker to the appointment of a successor, in April, 1817, there was no person to receive the money, nor did the appoint. ment of the present administratrix remove this difficulty, for the fact cannot be disguised, that she determined to resist the contract, at all hazards, wnich led to the depositing of the money in bank, instead of the actual payment of it on the contract. In 1815, Baker was not in a situation to convey; there is no evidence that any step has been taken since that time to perfect the title; it is therefore questionable, whether the defendants can now execute the contract, notwithstanding they rely so much on the supposed laches of the complainant.

The letters that have been introduced, do not seem to have any bearing on the the case. The one dated in May, expresses a doubt whether complainant would be able to pay the money when it should become due, and requests further time, but whether he was able to pay, or whether further time was given or not, does not appear, nor is it material, as the defendants were not in a situation to demand it. The second letter expresses doubts as to the power of the administrator to convey. Whether those doubts arose from the imperfect state of the title, or a supposed defect in the power, does not appear: it is certain, however, that the doubts of a party do not affect his legal rights.

The argument drawn from the fact that the object of the testator, in directing this property to be sold, has been lost by the non-payment, would have been entitled to much weight, if the omission to pay were justly chargeable on the complainant; but as it results from the inability of the defendants to perform the contract, on their part, it cannot be urged to the prejudice of the complainant. It does not appear that the representatives of Parker have taken any trouble to clear or perfect the title. They seem to have been careless and indifferent about the matter, while Wills was doing all in his power to sustain the claim. No part of his conduct has evinced a disposition to abandon the contract.

The objection that no regular tender was made, of the purchase money, has been already answered; it may be added, however, that as the administratrix had refused to receive the money, or execute the contract, although that fact, in a court of law, might not excuse an actual tender, yet connected with circumstances, it is sufficient in equity, where form yields to substance, and things manifestly vain and useless, are not required to be done. The production of the mo ney would have answered no other purpose than to test the sincerity of the refusal to receive it, on the one side, and the ability to pay on the other, which was afterwards done, by a rejection of the money, and a deposit of it in bank.

WALDSMITH v. WALDSMITH.

Where the defendants are named in the declaration as administrators, evidence may be given to charge them in their individual characters.

The form of judgment is not necessarily controlled by the descriptio persona.

The omission of a material averment cannot be supplied by testimony at the trial.

The distributers of the personal estate of an intestate cannot join in an action against the administrators for their proper share.

This cause came before the court by adjournment from the Supreme Court of Hamilton county, upon a motion to set aside a non-suit, and grant a new trial. It was an action of general indebitatus assumpsit, in which the plaintiffs claimed as heirs of Christian Waldsmith, and charged the defendants as his administrators. In the declaration, the plaintiffs described themselves as "children of John Waldsmith, deceased, and heirs of Christian Waldsmith." Besides the usual money counts, as for money received by the defendants after the death of the intestate, the declaration contained a count alleging a settlement by the ad. ministrators with the court of common pleas, and a balance being found in their hands due to the plaintiffs, in consideration whereof they assumed, &c. The defendants pleaded the general issue, and upon the trial the testimony offered by the plaintiffs was objected to, upon the ground, that it went to prove a personal liability in the administrators only, upon which they could not be sued as administrators. The court rejected the testimony, and the plaintiffs having suffered a non-suit, moved the court to set it aside, upon the ground that the opinion rejecting it was incorrect.

Guilford, in support of the motion. Storer, contra.

The plaintiff's counsel insist that in all cases, where the promise in the declaration is alleged to be made by the administrator, the judgment and execution must be de bonis propriis, and that it is only where the promise is alleged to have been made by the intestate, that the judgment is de bonis testatoris.

Opinion of the court, by Judge BURNET.

At the trial of this cause it was proposed, on the part of the plaintiffs, to prove that they were children of John Waldsmith, and heirs of Christian Waldsmith, deceased-that the defendants were the administrators of C. Waldsmith, and that on settlement of their accounts before the court of Common Pleas, a large sum was founded in their hands belonging to the heirs. This testimony was rejected, and a judgment of non-suit entered.

On a motion to open the non-suit, and grant a new trial, the question was, whether the court erred in overruling the testimony. In examining this case, it is necessary to look at the declaration. The defendants are charged as ad. ministrators of C. Waldsmith, deceased; the plaintiffs are described as "children of John Waldsmith, deceased, and heirs of C. Waldsmith, deceased." It is averred, "that the said defendants, administrators of C. Waldsmith, deceased, accounted with the judges of the court of Common Pleas of and concerning the goods and chattels, moneys and effects, which were of said Christian at the

time of his death, and which, before that time, had come to their hands to be administered; and, upon such accounting, the said defendants were then and there founded to be in arrear, and indebted to the said plaintiffs in the sum of $2,358 74, and being so found in arrear and indebted, they, the said defendants in consideration thereof, undertook and promised," &c.

The declaration also contains the common money counts, in which the defendants were not named as administrators.

It was contended by the defendants at the trial, that the judgment against them, on this declaration, must be de bonis testatoris, while the facts charged, if they rendered them liable at all, made them so in their individual capacity.

The plaintiff's insist first, that the judgment must be de bonis propriis; and secondly, that the facts charged, supported by the proof they offered, are sufficient to entitle them to such a judgment.

These propositions must be separately considered. There appears to be some discrepancy between the authorities relating to the first point, which, on a superficial view, would seem to create a doubt.

It is true, as a general proposition, that in actions against executors or administrators, the judgment must be de bonis testatoris, and that it is necessary to resort to a sci. fa. in order to charge them with a personal liability; but this is to be understood as applying to cases in which they are liable only in that capacity, and not to those in which there is an individual liability. If the action be founded on a promise, made by the testator, or intestate, in his life, the defendant must be sued in his representative character; he may plead plene administravit, and the judgment must be de bonis testatoris; but, if the plaintiff rely on a promise by the executor, after the death of the testator, it is not necessary to name the defendant as executor, yet this may be done; they may be named as administrators by way of description, or for the purpose of showing the circumstances of the transaction, and the origin of the liability; but the defendants cannot plead plene administravit, and the judgment should be de bonis propriis. In such cases, the plaintiff is at liberty to describe the defendants as executors or not, at his election. The form of the judgment is not necessarily controled by that description, where it sufficiently appears that it is given merely as a descriptio persona, and not as an indication of the capacity in which the liability attaches. If the declaration presents a claim, to which the defendant is liable in his representative capacity only, as on an obligation executed by the testator, he must be sued as executor, and the judgment must be de bonis testa. toris; but if it present a demand, which originated from the acts of the defend. dant, in his capacity of executor, but for which he has become individually liable, as if he should settle a debt due from the estate, and give his own note in the character of an executor, he may be described in the writ and declaration as executor, or that description may be omitted, and in either case the judgment would be de bonis propriis. So in the case before us; the property of the intestate was received and disposed of by the defendants, as administrators; the money claimed in this suit was obtained, and is now held by virtue of their power as administrators; but having closed the estate, and settled their accounts by which the nett amount is ascertained, they hold that amount for the use of the heirs, and are liable in their individual capacity. Their liability, however,

does not depend on the simple fact that they are administrators, but on the subsequent transactions, which have brought the estate into their hands.

As regards creditors, the right of action against the intestate is converted, by operation of law, into a right against the administrators. They are liable to the creditor, because the intestate was so liable, and as the remedy must pursue the right, it must charge them in their representative capacity. But not so in the case of heirs; no right of action vested in them against their ancestor, and consequently none has been transferred against the representative. Their right had no existence till after his death, and it was then contingent, depending on the result of the settlement of the estate. It was in fact the right of the ances. tor, transferred by operation of law, and not a right against the ancestor.

The property was received, and converted into money for their use. The defendants became liable as agents, in the same character in which they would have been liable to the intestate, had they disposed of the property in his life, and by his authority. In other words, they are under an individual liability, on which an action could be sustained against them in that character. The words "as administrators," in the writ and declaration, may be considered as descriptive of the persons sued, and not of the character in which they are sued, or they may be treated as surplussage. No person can read the declaration, and notice the manner in which the liability of the defendants arose, without discovering at once the character in which it is intended to charge them. As administrators of the deceased, they received and disposed of the property, paid the debts, and settled with the court. These transactions were authorized and required by the letters of administration; they form a part of the plaintiffs' title, and it was proper to set them out in the declaration, but as they show an individual liability, the judgment must be de bonis propriis. This conclusion secms to follow from the authorities on the subject. The case of Wallis v. Lewis, (Ld. Ray. 1215) was by an executrix, on a promise made to herself, as executrix. On a motion in arrest of judgment, the court decided, that the declaration being grounded on a promise to the executrix herself, the naming her executrix was but surplussage. This point, however, was ruled differently in Elwees' executrix v. Mocater, in the same book, page 865, but it was decided in the same way, in Nicholas v. Killigrew, (1 Ld. Ray. 436) which was indebitatus assumpsit, by an administrator to recover money paid to a third person, after the death of the intestate, for the use of the plaintiff as administrator. In Jenkins and Wife v. Plume, (1 Salk. 207, and 6 Mod. 92) which was assumpsit by execu tors, for money had and received by the defendants, to their use, as executors.— The action was held to lie, and that the naming themselves executors was only to deduce their right, and set it forth ab origine. Marsh v. Yellowly, (2 Stra. 1106) was decided on the principle, that on a promise made, or a wrong done to the executor himself, he may sustain an action in his own name, or as executor, and it was held that in either case he was liable for cost. In Hooker v. Quilter, (Ib. 1271) the declaration contained three counts, as executrix, and one for the use and occupation of the plaintiff's house, There was judgment by default which was reversed on error, for, said the court, there being no verdict, they could presume nothing but that the fourth count was, as it appeared, in her own right, which could not be joined with the others. In the final determination of Jenkins and Plume, (as reported in 6 Mod. 181) the court say "the

plaintiff needed not have named himself executor, it being on a contract with himself. His saying that it was to his use, as executor, is true, and therefore no harm, but rather better, for it shows how the right came."

The cases cited from 4 Term. Rep. 347, and 2 Bos. and Pul. 424, do not meet the question before us. It was decided in those cases, that counts, on promises made by the testator in his life, could not be joined with counts on promises made by the executor, as such, because they admitted of different pleas, and different judgments; but it seems to have been understood, that separate suits might have been sustained against the executor, on those promises, naming him as executor, and that on the latter, the judgment would have been de bonis propriis, although the defendant was named as executor. The same remark applies to the authority from 2 Saund. 328. The cases there referred to relate to the doctrine of joinder of actions, and were cited for the purpose of showing, that money claimed by, or from executors, in different rights, could not be united in the same declaration, which is a question altogether different from the one now under discussion. We should not expect to find the present question determined in cases of that character, but as far as they have a bearing on it, they seem to support the declaration before us. The author of the note admits, that a count, on an account stated, with an executor, for money due from the testator, may be joined with a count on a promise made by the testator; and though he strongly doubts the doctrine in Petrie v. Hannay, (3 D. & E 659) in which it was laid down, that several counts may be joined, for money had and received by the defendant, to the use of the testator, and to the use of the executors as such, yet Buller, justice, confidently affirms that such was the constant practice. The case of Hooker v. Quilter, before cited, seems to imply the same thing.

In Carter v. Phelps' administrator, (8 John 440) it was admitted, that a count charging an executor as being liable in his own right, on a cause of action arising after the testator's death, cannot be joined with one on a promise made by the testator in his life; but it was decided that a count, on a promise made by an executor or administrator as such, in which he is not charged as personally liable, may be joined with a count on a promise made by the intestate, and by a parity of reasoning a count on a promise by an executor, in which he is named as executor; but charged as in his own right, may be joined with a count on a promise in which he is not named as executor. In both cases the demand is made in the same right and the plea and judgment are the same in both. In Myer v. Cole, (12 John. 350) the cause of action stated in one count, arose after the death of the testatrix, and the promise was not alleged to have been made by the executors, as such; but the point decided in that case, does not arise in the case before us. It is, however, plainly to be inferred, from the language of the court, that in an action against exccutors, for a cause arising after the death of the testator, and for which they are personally liable, they may be named as executors, as a mere descriptio personæ, and consequently that the judgment, notwithstanding they are so named, will be de bonis propriis.-In Hooker v. Quilter, (as reported in 1 Wil.) the chief reason against the joinder was, that the court could not say what damages the plaintiff was to have, as admin. istrator, and what in proprio jure. The reason of the decision, therefore, has no application to the present case. It was also stated in that case, that if an