
    Bailey and Another v. Beckwith, Executor.
    July, 1835.
    Lewisburg.
    (Absent Brooke. J.)
    Pleading and Practice — Debt” — Declaration — Suffix ciency. -Upon an obligation to A. by tbe name of executor of B. tbe action should be brought by A. in his individual character, and he ought regularly to declare in the debet and detinet; but though the declaration be in the detinet only, it will not be held bad for this cause. The allegation of the debet is such mere matter of form, that the omission will be disregarded even on special demurrer.
    On the 16th of September 1831, John A. Bailey and George V. Lewis executed an obligation in these words.
    “We promise to pay Barnes Beckwith executor of Absalom Bailey deceased fifty-two dollars and sixty-five cents on or before the 16th day of September 1832 next ensuing, for the true payment whereof we bind *ourselves, our heirs, executors and administrators firmly by these presents, in the penal sum of one hundred and five dollars and 30 cents. Witness our hands and seals this 16th day of September 1831.
    John A. Bailey [Seal.]
    Geo. V. Lewis [Seal.]”
    Upon this obligation an action of debt was brought in the circuit court of Wood county. The declaration was in the name of Barnes Beckwith executor of the last will and testament of Absalom Bailey deceased, complaining of John A. Bailey and George V. Lewis, of a plea that they render to him the sum of one hundred and five dollars and 30 cents, which from him they unjnstly detain; that is to say, not in the debet and detinet, but in the detinet only. The defendant Bailey, after craving oyer of the obligation, demurred specially to the declaration, assigning for cause that it was in the detinet only. This demurrer was overruled, and the defendant Lewis making default, a joint judgment was entered against both defendants. To this judgment a supersedeas was awarded.
    Fisher, for plaintiff in error.
    Summers, for defendant in error.
    
      
      See monographic note on “Debt, The Action of’" appended to Davis v. Mead, 13 Gratt. 118.
    
   TUCKEJR, P.

I am of opinion that this judgment should be affirmed. There can be no doubt, indeed, that the action having been brought upon a bond taken to the plaintiff, was an action in his own right, although he is styled executor in the bond; and therefore it is equally true that technically the declaration should have been in the debet as well as the detinet. Whether the omission to declare in the debet, however, be even a sufficient cause of special demurrer, is not so clear. Upon the examination of the authorities (as far as they are in our possession) cited by counsel here, and also in *the case of Wilson v. Hobday, 4 Maule & Selw. 120. I have found no case in which judgment has been given against the plaintiff for such an error, even upon special demurrer. In Gilbert on the action of debt 401, indeed, the omission is considered fatal in the action against the heir: but this may rest upon the peculiar character of the action, in which the plaintiff seeks to charge the heir with the debt of his ancestor by reason of assets descended, and is therefore held strictly to set forth his indebtedness. Be this as it may, as there is no case which is ad idem, I feel not at all disposed to extend these unsubstantial objections farther than I am compelled by authority to sustain them. The spirit of our legislation is against them, and the courts should imbibe that spirit. Happily, we are sustained on the present occasion by the decision of the courts of Westminster of a recent date, which we are in the habit of respecting, if we do not look upon them as binding authority. In the case of Wilson v. Hobday, just cited, the declaration was on a bond from the defendant to the assignors of the plaintiff, and was 'in the detinet only. The defendant demurred specially, and lord Ellenborough gave judgment for the plaintiff. He took a very just distinction between declaring in the debet and detinet, where the party ought to have declared in the detinet only, and declaring in the detinet only, where he ought to have declared in the debet and detinet. In the former case he extends his demands, which he has no right to do. In the latter he abridges it, which he has a right to do. Thus in devas-tavit against an executor, the plaintiff may declare in the debet and detinet both; yet if he declares in the .detinet only, it is not bad, but he shall only have judgment de bonis testatoris. Spotswood v. Price, 3 Hen. & Munf. 123. Por if the plaintiff may charge the executor in the debet, so as to make him liable de bonis propriis, surely (say the court in Hope v. Bague, 3 East 2), he maj’ waive part of his right, and charge him in the *detinet only, so as to entitle himself to the lesser judgment de bonis testatoris. And of this opinion the court had been in the very early case of Royston v. Cordrye, A11. 42, cited by Lawrence, J., in 3 East 6.

It may be said, perhaps, that in this case there is nothing waived by the plaintiff, since, if he gets a judgment at all, he must have the same judgment as if he had declared in the debet as well as the detinet. But so was the case of Wilson v. Hobday, and yet the plaintiff had judgment. Indeed the very objection furnishes its own answer; for if, from the nature of the case, the plaintiff waives no part of his demand by omitting to declare in the debet, it only proves that he sufficiently and fully sets forth his own right and the defendant’s wrong, by declaring in the detinet only, and charging him with unjustly detaining the sum which he demands that he shall render to him. I am of opinion to affirm the judgment.

The other judges concurring, judgment affirmed.  