
    Joel Hill, et al. Administrators of Rebecca Martin vs. Benton Robeson, Use of Washington Jennings.
    R. contracted with M. to act as overseer for M. for one year, for three hundred dollars a year. M. died before the expiration of the year, but R. continued to act as overseer till the year had expired, and sued H. the administrator of M. for the year’s wages; Held, that R. was entitled to recover for the whole year, notwithstanding M.’s death.
    In an action of indebitatus assumpsit for work and labor, against an administrator, the promise was laid by the intestate, long after his death : Held, the time was immaterial. i
    In an action against an administrator, it is erroneous to enter a judgment against him de bonis propriis ; it must be against him in his representative capacity.
    In error, from the' Yalobusha circuit court.
    The defendant in error sued the plaintiffs, as administrators of their intestate, in an action of assumpsit, for labor done and performed in and about the. plantation of the intestate, as overseer, for the year 1840, for which he promised to pay him three hundred dollars. The declaration averred that the promise was made on the 1st day of January, 1841.
    William Minter proved that Robeson served all of the year 1840, for the deceased, and was a good and faithful overseer, and that three hundred dollars was a reasonable compensation.
    James McMullen, on the part of the plaintiffs in error, proved that Mrs. Martin died on the 4th of May, A. D. 1840; that he had heard the plaintiff below, say that he was absent from the plantation of Mrs. Martin, about five weeks during the year 1840, and that he had heard Mrs. Martin, in her lifetime, say that there was a" special agreement, that Robeson was to have three hundred dollars for his year’s .services. This was all the testimony.
    The plaintiffs in error moved the court to instruct the jury, that the plaintiff was only entitled to recover for his services to 4th of May, 1840, being the day of Mrs. Martin’s death. The court refused to give the instruction, which refusal was made the subject of exception, and is assigned for error here.
    The jury brought in a verdict for three hundred and fifty-six dollars, in favor of the plaintiff below. The judgment of the' court was, “ that the plaintiff recover of the defendants the sum assessed by the jury aforesaid, also the costs in this cause expended.”
    The form of the judgment was also assigned for error.
    
      E. <S. Fisher, for plaintiffs in error.
    The court below should have given the instructions asked by the counsel for the plaintiff in error. The plaintiff below should have declared upon his special contract. He could only recover in indebitatus assumpsit, upon the implied promise for the time he was actually in the service of Rebecca Martin. His services for her benefit could not continue beyond her lifetime. The declaration avers, that Rebecca Martin, in consideration that plaintiff had served her twelve months as overseer, promised to pay him three hundred dollars. She was dead when this promise is alleged to have been made. She died eight months before the year expired. A promise can never be implied, where an express one could not be made. Where one renders services for another, the law presumes a promise to pay for them. But the services must always precede the promise, as there is no legal or moral obligation to pay in advance. If a party abandon his special contract, and sue upon an implied assumpsit, he must show strict performance of his contract. Here the party did not perform his contradt, but was absent five or six weeks.
    He is only entitled to recover for four months’ services, the time Rebecca Martin lived after his undertaking to act as overseer. The law on this subject is fully laid down in Comyn on Contracts, 282. ' . ,
    But the judgment in this case is entered against the defendants below in their individual capacity. The judgment in such cases should not be entered against the person sued,- but against the property of the deceased, in his hands to be administered. A mere reference to the form of the judgment, required in cases of this kind, will satisfy ,our mind as to the law on the subject. Tillinghast’s Forms, 190. , '
    
      Baine, for defendant in error in reply.
    The form in which the judgment is entered'up, has been determined by this court to be-a,“clerical” error, and such as may be amended in a collateral proceeding. See Hoggatt v. Montgomery, 6 How. 93, also Bozman v. Brotan, 6 How. 351,, where the court “ intimate an opinion that even the plea of non assumpsit,” plead personally and a judgment thereon personally would not subject the party to the execution of it propria persona. If the error be merely clerical, as you have decided, then this ccfiirt will amend it, of direct the court below to do so. But at any rate, this court rendering the. judgment the court below should have done, will enter a.judgment here against the plaintiffs in error as administrator. The court will not reverse and remand, but if it reverse it will enter the judgment the court' below ought to have rendered.
    The defendant took the ground below that no recovery could be had against the estate for services rendered after the 4th of May, because no promise could be made after the death of Mrs. Martin, otherwise that there was a variance between the declaration and proofs. The declaration laying it to be on, to wit, the first of January, 1841, whereas the proof showed Mrs. Martin to have died May 4th, 1840.
    To this we reply, that the time of the promise, in thesé actions, is wholly immaterial.
    Thus it is laid down in Chitty’s Pleading, page 289: “ In assumpsit upon a contract the day upon which it is alleged to have been made, being alleged only for form, the plaintiff is at liberty to prove that the contract, whether it be express or implied, was made at 'any other time. And where it is not material that the day laid in the declaration should accord with the truth, it is not material that the time stated, be so far distant that in fact the parties could not have been alive.”
   Mr. Justice Thacher

delivered the opinion of the court.

This was an action instituted' in indebitatus assumpsit to recover the value of a year’s services as overseer upon a plantation. It appears in evidence, that the intestate had agreed to pay the nominal plaintiff $300, for his labor for'one year from the 1st day of January, 1840, until the 1st day of January, 1841, and that the intestate departed this life in the spring of the year 1840. The promise, as by the intestate, was laid in the declaration ujron the 1st day of January, 1841. The plaintiffs in error requested the court below to charge the jury that the defendant in error was only entitled to receive for his services to the 4th day of May, 1840, it being the day of the intestate’s death. It also appeared in evidence that the term of labor, with the exception of a few weeks, had been performed. The court below refused the charge, which refusal was made the ground by which the case was brought here by writ of error.

The contract was not such an one as required to be declared upon specially. It contained no conditions of times and periods of payment or of the nature and peculiarity of the work which gave it that character. The time, also, at which the promise was laid in the declaration, was unimportant. In assump-sit upon a contract, the day upon which it is made is alleged only for form, and the plaintiff is at liberty to prove that the contract, whether express or implied, was made at any other time.

The charge, we think, was properly refused. The death of the intestate did not interrupt the progress of the agreement, and its fulfilment having been established in evidence, the-right of recovery for the term of time was full and complete.

It is objected to the judgment that it was, in its language, against the plaintiffs in error personally, and not in their administrative capacity. This point received the adjudication of this court in the case of Breckenridge Administrator, v. Mellon’s Administrator, 1 H. 273, where it is held that a judgment must be against such defendants in their representative capacity. On this account, the judgment below must be reversed, but it being a cáse where the judgment can be corrected here, it is ordered that a judgment be entered against the defendants below for the amount' of the verdict, in their representative capacity, to be levied of the goods and chattels of their intestate in their hands.  