
    Bowie’s Administratrix against Foster.
    DECEMBER, 1824.
    1, Oil a writing acknowledging indebtedness (,o F. and promising to pay C., F. has a right of action.
    52, Such writing not being under seal is a promissory Note; and in declaring on it js not necessary to aver the consideration.
    3, The note-sets ¡out the character in which C. is to receive, and the purpose to which he is to apply, the money ; but the declaration does not; the variance is not material.
    4, Judgment vs. administratrix de bonis propriis is ]£rror.
    IN the Circuit Court of Washington County, James Fos-. ter declared in assumpsit against John Bowie, describing a promissory Note of defendant to him, by which defendant acknowledged himself to be indebted to him in $141 75 j and thereby then and there promised to pay the same to one Thomas Carson. Averred that he did not pay to Carson ; and in consideration thereof, and being so .indebted afterwards, &c. promised, to pay the said money in said note specified to the plaintiff according to the tenor and effect thereof Breach — that defendant,. though often requested, has not paid either to Carson or to the plaintiff. Pleas, non assumpsit — -tender of the money to Carson and tender to plaintiff and issues. J. Bowie having died pending the action, suit was revived against Sarah Bowie, his administratrix: verdict for plaintiff on the above-mentioned pleas, and judgment against the defendant generally, not stating to be levied of - the goods and chattels of her intestate, &c. On the trial, the only evidence offered by the plaintiff was a note as follows :
    “ Due James Foster one hundred and forty-one dollars “ t/oj which I promise to pay, Thomas Cat-son, Sheriff of “ Baldwin County, to satisfy an attachment — Joseph Bates, “ administrator of Thomas Bates deceased, against said' “ Foster — whose receipt will Ire good against said due bill, “ as witness my hand this 19th of April, 1816.
    “ JOHN BOWIE.”
    Which was objected to by the defendant — rthe objection, overruled, and a bill of Exceptions taken. She sued put $ writ of Error to this Court.
   Judge Minor

delivered the opinion of the Court.

The first assignment is, that the declaration does not set forth any right of action in the plaintiff The evident conT struction of the contract as set out is, that Bowie undertook; .and promised to Foster, and for his benefit, to pay to Carson ¡the money he owed to Foster. The right of action seems tp be as clearly in him as it would have been on a note tp pay a debt due to him at a particular Bank or any other place. The 2d assignment is, that the declaration does not shew a sufficient consideration to support a promise. It has been heretofore decided by this Court, that a writing, such as is described in the declaration, is to be received as evidence of the debt or duty, and that it is not necessary to aver the consideration. The 5th assignment is on the bill of Exceptions. Although the declaration does not, and the note in the bill of Exceptions does, sot out that the payment was to be made to Thomas Carson, Sheriff of Baldwin County, to satisfy an attachment, &c., I cannot see how setting forth this matter could have aided the party in his defence, or that the variance in the description of the instrument would present any difficulty to his barring a second recovery for the same cause of action. As to the 3d and 4th assignments—ihe title of the cause, as stated on the Record, shews that the judgment is against the plaintiff in Error in her representative character, and not against the intestate ; but the judgment being against her •de bonis pro-priis must for that cause be reversed, and judgment correctly rendered here.

Ruffin, for plaintiff

cited, I Ch. PL 8 Mass. 103.

Crawford and Hithcock, for defendant in Error.

The Chief Justice having presided in the Court below, did not sit. 
      
      
         Allen vs. Dickson, ante, p. 119.
     