
    *John McCoy v. Wm. Y. Gilmore, Administrator de bonis non of Robert Kercheval, deceased.
    Anota for eight hundred and sixty, not saying what, concludes thus: “For value received, $860,” is a good note for that sum. Note made payable to A. B., administrator of C. D. A. B. dies, suit must be brought in the name of his executor or administrator.
    Deserved in the county of Eoss.
    This case comes before the court on writ of error to the court of common pleas of Eoss county. The original case in that court was assumpsit, in the name of Gilmore, as administrator de bonis non of Kercheval, against John N. Pomeroy and John McCoy. The writ was returned served as to McCoy, and not found as to Pomeroy. Upon the return of the writ, the plaintiff filed his declaration containing four counts. ,
    The three first counts'are upon a promissory note made by the defendant, to one Henry Johnson, administrator of Robert Kerchevel, for the sum of eight hundred and sixty-eight dollai’s, payable twelve months after date, and bearing date April 17, 1833, and averring in each count that said note was made to said Johnson, in his capacity as administrator. The fourth- count is for goods sold by the said Henry Johnson, as administrator of Kercheval. It is further averred that Henry Johnson is deceased, and that the plaintiff has been appointed administrator de bonis non of Kercheval.
    The defendant craves oyer of the note, which is as follows:
    “ Chillicothe, April 17, 1833. Twelve months after date we promise to pay Henry Johnson, administrator of Robert Kercheval, deceased, the sum of eight hundred and sixty-eight for value received — $868. Signed, John N. Pomeroy,
    John McCoy.”
    After which he demurred generally.
    Upon hearing, the court of common pleas overruled the demurrer, and rendered judgment in favor of the plaintiff, for the amount of the note and interest.
    To reverse this judgment, this writ of error is brought, and it is assigned for error:
    1. There is no such privity of contract between the deceased Kercheval and the defendant in error, as will authorize a suit in the name of (Gilmore, administrator de bonis of Kercheval.
    2. That the note upon which suit is brought, is not such an instrument, and does not contain such a promise as will lay the foundation of an action.
    ♦Other errors are assigned, but it is unnecessary to notice [269 .them.
    Sill, for plaintiff in error:
    1. This action should have been brought by the administrators of Henry Johnson, and not by the present plaintiff, for though the note was given to Johnson with the addition of administrator, yet this is mere surplusage, and may be rejected. 1 Salk. 207; 3 lb. 105 ; Wilcox Cond. 300, 301; 2 Ohio, 256; 4 Term, 347. This note, if recovered, would not be assets. By taking it, Johnson rendered' himself personally liable to the creditors of Kercheval.
    2. The paper set out as a note is not, from the face of it, a promissory note. No money is promised to be paid, .and the^figures in the margin, or at the bottom, can not be taken into consideration. They constitute no part of the instrument.
    3. If the instrument sued is of that nature that Johnson must have brought suit in his representative character, then it is admitted that the present plaintiff may sustain an action upon it in his representative character. But Johnson might have sued in his own private character, and if he had sued as administrator the addition would have been considered as a mere description of the person. In the event of a judgment against him, that judgment would have been made of his own goods, and not of the goods of the deceased; neither could he have appealed without bond.
    T. Scott & Son, for defendant:
    1. It is averred in the declaration that the note in suit was given to Johnson in his representative capacity as administrator of Kercheval, and the demurrer admits the demand tobe^true; consequently the right of action, upon the death of Johnson, vested in the plaintiff’s administrator de bonis non. The'money, had it been collected by Johnson, would have been assets in his hands, from which it would seem necessarily to result that this action 'is well brought.
    Executors and administrators may sue in their representative character in all cases where the money, when received, would .be assets. 1 Term, 487; 3 East, 104; 3 Term, 659; 2 M. & S. 408, 216, a; 2 Lev. 165; 6 Price, 412; 2 Dowl. & Ryl. 270; 5 East, 150; 1 Term, 312.
    *When an executor or administrator dies, rights belonging to him as such pass to the representatives of the testator or intestate’s estate, and therefore an administrator de bonis non must be appointed. 5 Price, 412; Ham. 136; Chit. PI. 14; 1 B. & C. 154; 2 D. & B. 272; 7 Term, 182; Saund. Pl. 497, 572.
    2. A complete answer to the objection, raised by the second assignment of error, will be found in 2 Chit. Pl. 30, 31, 80; 3 Stark. Ev. 1235; 6 Ohio, 416.
   Judge Hitchcock

delivered the opinion of the court:

As to the second error assigned we have no difficulty. It is true that in the written bond of the holder the word dollars is omitted, undoubtedly by mistake. But in the same line eight hundred and sixty-eight dollars in figures is inserted. This, we apprehend, is sufficient to make the instrument a good promissory note for that sum.

The other error assigned presents more difficulty. It raises this question, whether an administrator de bonis non can sustain an action in his own name and in his representative character, where a promissory note is made payable to the former administrator, in which the payee is described as administrator of the intestate. So far as we have known anything of the practice upon the subject in this state, it has been to sue such notes in the name of the representative of the person to whom the note was given. There is much force in the authorities cited by the defendant’s counsel to show that a different practice might, with propriety, be pursued. Still we are not satisfied that it would be proper. Certainly there is no privity of contract between the intestate and the maker of the note. It is a contract made after his decease, and the only indication that it has any connection with his estate is, that it is made payable to the payee, naming him as administrator. This has been held to be a mere description of the person. By taking the note the payee may become liable to the creditors of the intestate to that amount. He will be so liable if the consideration of the note was any part of the estate of the intestate ; and being so liable, it seems to be proper that his representatives should collect the money. To adopt a different principle might lead to this difficulty, that where an administrator had .improvidently intrusted the property of the intestate to irresponsible individuals, he would ^exonerate himself from liability by taking notes payable to himself as administrator. The promise in the present case is to Henry Johnson, administrator, etc. This addition has heretofore been considered merely as a description of the person, and we are inclined still so to consider it. The suit should have been brought in the name of the representatives of the payee, and not of another person. On this account we think the court of common pleas erred in overruling the demurrer, and for that error the judgment will be reversed.

Judge Collett dissented.  