
    Hood, administrator of Bradford vs Link.
    Case.
    Error to the Bourbon Circuit.
    
      Case 1G.
    
      Descriptio persone. Judgment. Amendment.
    
    
      September 21.
    The case stated.
    Although the writ and declaration style the defendantadm’r. and the words ‘adm’x. as af’d.’ are used also, they are to be taken as description of the person, and do not dlelsively show an intention to charge the defendant in his fiduciary character.
    When, defendant is charged with a personal act (as a fraud,) the mere fact of styling him adm’r. does not negative his personal liability. (Can anestatebemade liable for the fraud of the adm’r. in disposing of the assets.)—
   Judge Maeshall

delivered the Opinion of the Court.

This action, on the case, was brought by Link against Flood, administrator with the will annexed of Bradford, to recover damages for an alleged fraud in the sale of a slave. Upon a verdict finding damages for the plaintiff, ajudg'ment was rendered against the defendant to be levied debonis iestatoris; but at the next succeeding term of the Court the judgment ivas, on motion of the plaintiff, amended by the declaration so as to be personal against the defendant, who seeks, by writ of error, the reversal of the last judgment.

In considering the case as thus presented, two questions arise: 1st, Is the action brought against the defendant in his personal and not in his representative character, so that a judgment in the latter character was inappropriate? and, 2d, If the defendant is sued in his individual capacity only, was the judgment de bonis testaioris, amendable at a subsequentterm as a clerical misprision?

1. Although both the writ and declaration style the defendant “William S. Hood, administrator with the will annexed of Benjamin Bradford, dec’d.and the words “administrator, &c.” or “adm’r. as aforesaid,” are added wherever he is mentioned in the declaration, this circumstance, as has been frequently decided in actions ex contractu against executors and administrators, founded on their own acts, is by no means decisive of an intention to charge the defendant in his representative character, and such additional words will be taken as mere description of the person when a personal liability is shown in the declaration, unless the intention to charge him in his representative character be otherwise unequivocally demonstrated.

In this case the fraud alleged is strictly and emphatically a personal act, for which the wrong doer is unquestionably liable in his individual character, and the mere fact of styling him administrator in describing the act done by him, not only does not negative his personal liability, but is wholly insufficient to show any other liability. Surely the estate of which he is the administrator cannot be made liable, merely because he, being administrator, sold a slave and committed a fraud in the sale, and yet this is all that the declaration in this case alleges. It is not averred that the slave belonged to the estate, or that it was sold for the benefit of the estate, or that the proceeds were appropriated in that way—nor is it even stated that the defendant sold the slave as administrator, but merely, that the defendant, administrator as aforesaid, sold, &c. Conceding then, without deciding that a judgment de bonis testatoris, might be obtained in an action on the case, for a fraud committed by the defendant as administrator, in disposing of the assets for the benefit of the estate; we are decidedly of opinion that in the present case, the judgment de bonis propriis, is appropriate, and the judgment de bonis testatoris, inapropriate and unauthorized, because the declaration shows clearly a personal liability on the part of the defendant for his personal tort, and it does not show any ground of liability on the part of the estate for that personal tort. If any averments would authorize a judgment de bonis testatoris, in such an action, the averments in this deelaiation do not authorize - it, but requite a judgment de bonis propriis.

To enter judgment de bonis testatoris against one sued as administrator for fraud in the sale of a slave, when it should have been de bonis propriis, is a clerical misprision and amendable at a subsequent term, after judgment.

Robinson Johnson for plaintiff; Owsley for defendant.

2. And as it has been often held that a personal judgment, rendered in a case where, upon the declaration, it should be against the assets only, is' amendable as a clerical misprision, so we think the error in this case, of entering the judgment at first against the assets in the defendant’s hands as administrator, when upon the declaration it should have been against his own estate, was a clerical misprision, and as such, amendable by the declation, and properly amended at a subsequent term.

Wherefore, the judgment is affirmed.  