
    James Robbins & William Gillett, vs. Orlin H. Gillett, Administrator of Benoni R. Gillett, deceased.
    A declaration in trespass quare clausum, fregit, by an administrator^ which alleges the injury to have been done to the damage of the plaintiffs’ close, is bad on demurrer. An allegation that the-plaintiff suos as. administrator is a mere descriptio persona of the plaintiff.
    A plaintiff cannot, where, he sue,s in a representative character, join counts on causes of action accruing to him individually, with those aocruing as executor or administrator^-and where the declaration in distinct counts, charges in the. onq, an injury to the land of the. plaintiff, and in another to land belonging to the estate of the deceased, the declaration will be, held bad for duplicity.
    Error to La Fayette. Cpunty Court.
    This was an action of trespass quare clausum fregit brought by the defend¡ant in error as administrator, &c,( There were two counts in the declaration; the first set tout a cáuse of áction in his own right. The second, á 'cause of action accruing to the plaintiff as administrator.
    To this declaration the plaintiffs in error demurred spe* 'dally; assigning several causes as follows:
    1st. That the declaration containfed two causes of action; one in right of the plaintiff below, and another in right of himself as administrator.
    2d. That the declaration was double, and' set out two distinct causes of action:
    3d. That the declaration does not; in the second count, aver that the decedent Benoni R. Gillett was seized, at the time of his death; of the premises upon which the alleged trespass was committed.
    4th. That the second count alleges that the defendants below committed waste, spoil and destruction of the freehold of the decedent.
    5th. That the declaration did not allege that the defendants below committed the trespass subsequently to 'the death of Benoni R. Gillett.
    6th. That both counts of the declaration virtually set up a right, solely in the plaintiff below, to maintain the ■action on his own account-.
    7th. That the declaration did not allegó the injury to have been done to the plaintiff’s damage, &c;
    To the demurrer the plaintiffs joined. The court below overruled the demurrer, and gave judgment for the plaintiff below-, for the amount claimed in the declaration, and the cause came into this court by a writ of error to the court below.
    
      Culver, for plaintiffs in error,
    cited in support of the Several points made by the demurrer: 1st Ckitty's Plead
      
      ings,p. 234; do., 260; Tollers Executors., 1.7.6; Rev, St(it, of Wis., 367; 5 Wendell’s Rep., 36.
    
      Cothren, for defendant in error.
   By the Court.

Wi-iiton, J.

-This yyas ^n action of trespass quare clausum fregit, brought in the County Court of La Fayette County, by the plaintiff, as the administrator of the. goods, &c., of Renoni R. Gillett deceased.

By chapt. 69 § 7 of the Revised Statutes, it is provided th.at the executor or administrator, shall have a right to the possession of all the real, as well as the personal estate of the deceased, and may receive the rents, issues and profits, &c.

Under this section, the plaintiff claims the right to maintain this action.

The declaration contains two counts, to which a demurrer was interposed; the demurrer -was overruled by the coui;t, and a judgment rendered for the plaintiff.

We are satisfied that the judgment is erroneous. The fjrst coun,t charges that the defendants broke and entered the. clo$e of thp plaintiff, administrator as aforesaid,” and throughout, alleges the injury to ha.ve been done to the plaintiff’s close. The addition of the words administrator as aforesaid ” does not alter th.e nature of the allegation, as these words are a mere descriptio personae, Myer vs. Cole, 12 John. R., 349.

The second count on the contrary, sets forth an injury to the land belonging to the estate, pf the deceased, and contains an averment that the plaintiff was duly appointed administrator, &p.

It is clear that damages, recovered; for the. injury complained of in this count, would be assets in the hands of the administrator, while those recovered in the fiipt count would not be.

Formerly it was held, that an executor or administrator could not join a cause of action accruing to the testator or intestate, with one accruing to himself in his representative capacity; but now, the better - opinion seems to be, that whenever the money when recovered would be assets, the executor or administrator may declare’for it in his representative character, Williams on Executors, 1329, 8 Wend. R., 530,

But when he sues in this character, he cannot join counts on causes of action accruing to him individually, with, those which have accrued to him as executor or administrator. 1 Chilly’s Pl., Ed, of 1833, 234. The declaration in this case is therefore bad, for charging the. defendants with a trespass to the land of the plaintiff, and also one, to the land belonging to the estate of the deceas-r ed — the action being brought by the plaintiff ip his re-! gpresentative character,

Judgment reversed.  