
    John G. Neeley, et uxor, Administrator and Administratrix of William King, deceased, vs. The President, Directors, and Company of The Planters Bank of the State of Mississippi.
    Whether upon the death of a defendant, and a scire facias to bring in his representatives, they can change the venue, on the ground that they are resident freeholders of a different county ? Query ?
    
    Where a deposition taken de bene esse was read in chief upon the trial below, without proof of the witness’ inability to attend, but the objection was not there made, nor the point reserved by exceptions, the objection cannot be made in this court.
    A deposition taken de bene esse cannot be read without proof of the inability of the witness to attend in person at the trial.
    A judgment entered against an executor generally, or de bonis propriis, is erroneous.
    In a suit against administrators, the verdict was that the “ deceased, in his lifetime, assumed, &e.,” and the judgment was, “ that the plaintiffs recover of and from the defendants, administrators of said deceased, as aforesaid; ” held, that the judgment was not against the defendants individually, but in their representative capacity.
    In error, from the Adams circuit court.
    The action in this case was originally instituted upon the indorsement of a promissory note, against Alexander Montgomery and Jane M. Neeley, late Jane M. King, the administrator and administratrix of William King, the indorser, and John G. Neeley, who had, after the grant of letters to Montgomery and Jane M. King, who was the widow of the estate, intermarried with the widow, and who was therefore made defendant in right of his wife. The original writ was lost; but Montgomery appeared, and filed a plea for all the defendants.
    The cause was legally continued for several terms, when Montgomery, ceasing to act longer in his capacity of administrator, letters in chief were granted by the probate court of county to the defendants, Neeley and his wife, and a scire facias to revive the action against them was sued out. The scire facias was directed to the sheriff of Claiborne county, and was executed, and the suit was duly revived. Whereupon the defendant, Neeley, made an affidavit for a change of venue, on the ground that he and his wife were resident freeholders of Claiborne county. The court below overruled the motion. The affidavit is not formally made part of the record, though appearing in the transcript.
    At a subsequent term the cause was submitted to the jury, who found the following Verdict: “We of the jury find that the said deceased, William King, in his lifetime, did assume and promise, in ■ manner and form as the said plaintiffs in their declaration have alleged, and we assess the plaintiffs’ damages to the sum of forty-six thousand three hundred and thirty-three dollars.” The judgment follows the verdict, in these words: “ Whereupon it is considered and adjudged by the court, now here, that th'e said plaintiffs do have and recover of and from the said defendants, John G. Neeley, administrator, and Jane •M. Neeley, administratrix de bonis non of said deceased, as aforesaid, the damages aforesaid, in manner and form aforesaid, assessed by the jury, «fee.”
    A motion was made for a new trial, which was overruled, and exceptions filed. The bill of exceptions purports to set forth all the,evidence, and includes the deposition of Hardy W. Pope, which was taken de bene esse, on interrogatories. This deposition was read on the trial below, without objection that appears of record, and without proof explaining or showing the absence of the witness.
    It is not deemed requisite to state the facts of tbe case, as exhibited by the bill- of exceptions, as they were not brought under review by the court.
    
      Thacher and Freeman, for plaintiffs in error.
    A scire facias is a new action, and requires a new warrant of attorney. 6 Johns. 107, 108. ,2 Ld. Raym. 1048. 7 T. R. 337. 1 How. R. 271.
    Where a defendant dies pending a suit, and before final judgment, and his legal representatives are brought into court by 
      scire facias, the latter have a right to appear and plead. 4 Cow. 457, 458, 459. 8 Johns. 77. Cowp. 727. 2 Str. 1043. 10 Mod. R. 112. H. & H. 584, 585, sec. 31, 32.
    The scire facias, in this cáse, shows that the administrator and administratrix, (which last was the widow of the intestate King,) obtained their original letters of administration from the probate court of Claiborne county. This shows that the residence of the administrators was in the county of Claiborne. See How. & Hutch. 395, sec. 35. Both writs of scire facias were issued to the county of Claiborne. The original writ in the case is lost; there is no evidence that the same was ever served on the original defendants, save that a plea is filed by an attorney. If the 'original parties to the suit were residents of the county of Claiborne, as the record shows they were, they had a right to plead that fact, and have the venue removed from Adams to Claiborne, at any time before trial. H. & H. 576, sec. 2. Pleading the general issue by attorney did not waive this right.
    The administrators de bonis non had the same right; they claimed that right by plea and affidavit, supported also by the admission in the scire facias, that the defendants resided in the county of Claiborne. This motion was overruled by the court, which is assigned as error.
    2. The judgment is rendered against the administrators generally, whereas the same should have been de bonis testatoris. 2 Williams on Executors, 1408. 1 Saund. 335, n. 10. 1 How. R. 271.
    , The court erred in overruling the ipotion for a new trial. The deposition was taken de bene esse, under the statute relative to taking the testimony of aged and infirm persons; and could only be read on the trial, after proof at the trial that the witness was at that time unable to attend. H. & H. 602, sec. 13. The bill of exceptions states all the evidence given on the trial, but includes nothing of this nature.
    
      J. T. McMurran, for defendant in error.
   Mr. Justice Clayton

delivered the opinion of the court.

The first point relied on to produce a reversal in this case, is the refusal of the 'court to change the venue, upon the ground that the defendants were resident freeholders of a county different from that in which the suit was pending. The original defendant had died during the pendency of the action, and this was a scire facias against his representatives to bring them in as parties. The affidavit, oh which the application was founded, is not made a part of the record by bill of exceptions; the point is not therefore presented in a manner which authorizes this court to consider of it.

The next point is that a deposition taken de bene esse, was read in chief upon the trial, without proof of the inability of the witness to attend in person. This objection is not shown to have been made in the court below, nor was the point reserved by bill of exceptions. The deposition was read without opposition, the court was not required to pass upon it, and we cannot permit the objection now for the first time taken, to prevail. If urged at a proper time and in no way obviated, it would have been fatal; but it might very probably have been’ cured in the court below, if it had been there suggested.

It is lastly insisted that the judgment is against the defendants individually and not in their representative capacity. If this be true in point of fact, the cause must be reversed, for a judgment entered against an executor generally, or de bonis propriis, is erroneous. 2 Lomax on Ex. 443; Hill v. Robison, 2 S. & M. 541. The verdict finds that the decedent, in his lifetime, assumed and promised to pay,” and the judgment is “ that the plaintiffs do have and recover of and from the defendants, administrator and administratrix de bonis non of said deceased as aforesaid.” It is very manifest that upon this judgment no execution could legally issue to be levied upon the proper goods of the defendants, but only upon those which they held in their representative character. In Hoggatt v. Montgomery, 6 How. 93, the court say “the judgment was rendered against the defendant generally, omitting the words “ as administrator,” and this was decided to be erroneous. But from the language employed, the inference is, that the addition of those words would have rendered the judgment good. Some cases have gone so far as to hold that their omission is a mere clerical error, which may be amended, after the record has been removed by writ of error, and the cause argued in the court of error. Short v. Coffin, 5 Burr. 2. But we have not gone so far upon the subject of amendment. 2 S. & M. 541.

This judgment, in our view, however, can only be regarded as a judgment against the defendants in their representative character. They were not before the court in any other capacity. 6 How. 351; 7 How. 200. No execution could issue upon it against them individually ; because in terms, it is against them as administrator and administratrix. We come, therefore, to the conclusion that there is no error in the form of the judgment, and that the same must be in all things affirmed.

Judgment affirmed.

Mr. Justice Thaoher, having been of counsel, gave no opinion.  