
    Giles, Adm'r. of Bacon, vs. Perryman.
    June, 1827.
    Where a declaration sets forth a ejaim or demand of the plaintiff against the intestate of the defendant, and the intestate’s promise to pay it, a reference of such demand, by his administrator, (the defendant,) and , the plaintiff, to arbitrators — an award, in pursuance of such reference, for a specific sum in favour of the latter — a promise by the defendant, as administrator, to pay it, and charges a breach in the nonpayment of that sum, it contains matter enough to warrant a judgment against the defendant in his character of administrator. The plaintiff is under no necessity to aver assets in the hands of the defendant, as administrator, sufficient to pay his debt.
    Tins peculiar mode of declaring originated in a plan to save the Statute of Limitations, and proceeds upon the ground, that it neither pledges the personal responsibility of the administrator after verdict, nor deprives him of any defence he could have had, if he had been charged with an assumpsit by his intestate; and with these qualifications, it will be received and adopted.
    An administrator who relies on the genera) issue p)ea, after verdict and judgment thereon, has admitted assets to pay the amount claimed of him,
    By the statutes of 21 Jac. I, ch. 13; .3 Geo. 1, ch. 13, and the act of assembly of 1809, ch. 153, a variance between the writ and declaration is cur, ed after verdict,
    JNo form of words is necessary to be used in an averment that a defendant is administrator; if enough is said to amount to an allegation, that the defendant administered on tjie estate of the deceased, it will suffice.
    A declaration vicious on account of an averment obscurely' made, is not such a fatal objection as will reverse a judgment.
    Appeal from Baltimore County Court. Action of assump? íit. The writ was against the defendant (now appellant,) in Sis own right. The declaration .contained two counts. The Jirst count stated, that «a certain James Bacon, late of Baltimore county, deceased, on whose estate the defendant hath administered, some time before his death, cut down, destroyed, fend took away, a large quantity of timber from oif the land of the plaintiff, for which the said James never paid or satisfied the plaintiff, although often requested so to do, to wit, at the county aforesaid; but always promised and engaged to and with the plaintiff, that he would pay and satisfy him for the same tim«. her. And whereas, after the death of the said James, and the administration on his estate, so as aforesaid taken out by the defendant, he the plaintiff and defendant agreed to leave the valuation of said timber to a certain Abraham Jarrett and Walter T. Hall, of Harford county aforesaid, he the defendant, agreeing to pay to the plaintiff whatever sum the said two persons might determine and award the said timber to be worth. And the said Jarrett and Hall, in pursuance of said agreement between the plaintiff and defendant, afterwards, to wit, on the 30th day of July in the year 1818, at Harford county aforesaid ; that is to say, at Baltimore county aforesaid, did award and determine that said timber, so as aforesaid cut down and destroyed, and taken away by said James, was worth the sum of $197, and made out a written award to that effect; of which the plaintiff and defendant afterwards, to wit, on the day and year last aforesaid, at Baltimore county aforesaid, had notice. Whereupon the defendant became liable to pay the said sum of $197 to the plaintiff; and being so liable, he the defendant, as administrator aforesaid, in consideration thereof, afterwards, to wit, on the same day and year last aforesaid, at Baltimore county aforesaid, undertook and faithfully to the plaintiff did promise, that he the defendant, as administrator of said James as aforesaid, would well and .truly content and pay the plaintfF the said sum of $197, when afterwards he should be thereunto requested.” The second count was upon an insim,iél computassent between the plaintiff, and defendant as administrator aforesaid, of divers sums of money due and owing by the defendant, as such administrator, to the plaintiff &c. The defendant demurred to the- declaration. The county court overruled the demurrer as to the first count in the declaration, and sustained it as to the second count. The defendant, with the leave of the court, then pleaded non assumpsit to the first count, and issue was joined. Verdict for the plaintiff and judgment against the defendant, as administrator of Bacon, §i non, de bonis projiriis as to costs» The defendant appealed Iq this court.
    
      The cause was argued before Buchanan, Ch. J. and Earle, Martin, Stephen, and Dorsey, J.
    
      Scott and Meredith, for the Appellant.
    1. The declaration does not pursue the writ, and the judgment is against the defendant as administrator. 2. The" declaration does not avef that the defendant administered upon the personal estate of Bacon, or that assets came to his hands. 3. A promise by an executor or administrator to pay the debts of the deceased, is nudum pactum, unless assets came to his hands.
    The promise from the defendant to the plaintiff is without consideration; and the verdict is, that the defendant did assume, &c. There was no sufficient promise to justify the allegation in the declaration, nor any finding of the jury sufficient for the judgment. Newl. on Cont. 79. There was no averment that assets came to the hands of the defendant as administrator, sufficient to enable him to make the promise. Mitchinson vs. Hewson, 7 T. R. 346, (note.) It cannot be supplied by intendment that there were assets in the defendant’s hands. The submission to arbitration is not an admission of assets. Pearson vs. Henry’s, Adm’r. 5 T. R. 6.
    
      R. Johnson, for the Appellee.
    The propriety of the judgment below is questioned, principally on two grounds. First. Because the promise declared upon in the first count of the declaration is without consideration, and therefore void; and Secondly.- Because if it be a valid promise at all, it was only so far valid-as to bind the appellant in his capacity of administrator, and that a sufficiency of assets in his hands to meet the debt should have been averred. Upon the first of these grounds the case of Rann us. Hughes, cited in 7 T. R. 346, (note a,) and in 1 Com. Cont. 49, was solely relied upon. Adverting to that case, it will be found to have been an action brought against Hughes, the defendant, as administrator, and, that the only question decided, or raised at the argument, was whether upon the declaration there was sufficient matter to authorise the judgment which had been rendered in the court below,, against the defendant de bonis propriis? There was ample matter in that declaration to have justified a judgment against the,defendant de bonis intestatoris. The case turned indeed wholly on the true construction, of the fourth clause of the Statute of Frauds, 29 Car. II. ch. 3, in relation to agreements-binding executors or administrators personally for the debts of their deceased testators or intestates. That case has no bearing upon the one now before this court. The question here is not, at any rate, whether the first count in the declaration contains matter sufficient to justify a judgment against the appellant in his individual capacity, but whether there is not matter enough in it to warrant a judgment against him in his' character of administrator, and of this can there be a doubt? A debt appears by the declaration to have been due by the ap? pellant’s intestate. He is charged with having converted to his own use the chattels of the appellee, and to have promised payment for them afterwards, and to have died without mak-. ing the payment. The appellant, after having administered, and the value of the property thus taken by his intestate, being unascertained, leaves the valuation of it to arbitrators, and agrees, as administrator, to pay what they may award; they make the award stated in the count in question, and the appellant is charged to have promised, as administrator, to pay it. If these facts do not bind the administrator, as in his character of administrator, and authorise a judgment against him in that character, it would be difficult to imagine a case in which such a result could be effected. Sollers vs. Lawrence, Wilies, 421.
    Upon the second ground, that assets should have been averred, no authoriiy was cited. The question is raised after a verdict in a case in which only the plea of non assumpsit was put in. A want of assets was not set up as a defence below. The court will find this point settled in favour of the appellee in 5 Com. Dig. tit. Pleader, (2 D. 1,) 576, cites 9 Coke, 24, (a;) and in Elting vs. Vanderlyn, 4 Johns. Rep. 237.
    It is said also, that there is a variance between the writ and declaration; the one being against the appellant individually, the other as administrator of Bacon. The answer to this is two-fold. First. That in point of law there is no variance which in any stage could be taken advantage of; and Secondly. That if there be such a variance, it cannot be taken, advantage of on a general demurrer, or at any rate, after a verdict in fit-» your of the plaintiff. 1. It is a well settled principle, that a plaintiff, in his declaration, may narrow the demand he malted of the defendant by his Writ. I Chitt. Pl. 253. 2. It is too late to take advantage of it. Duvall vs. Craig, 2 Wheat. 45. Vanderplank vs. Banks, 2 Wils. 85, Hole vs. Finch, Ib. 395, and our act of 1809, ch. 153.
    
    The last point is, that the declaration does not aver that the appellant administered upon Bacon’s estate. The declaration expressly states that he did administer upon Bacon’s estate, and it calls him throughout, such administrator. This way of declaring will be found amply sufficient under any defence which may be pleaded, and certainly where general defence only is taken. Holliday vs. Fletcher, 2 Ld. Raym. 1510. S. C. Stra. 781. Garland vs. Chattel, 12 Johns. Rep. 430. Barnes, 159, 160. 5 Com. Dig. tit. Pleader, (2 D. II,) 586, and Dean, &c. of Bristol vs. Guyse, 1 Saund. 112, (note 2.)
    
   Earle, J.

delivered the opinion of the court. This is an appeal in an action of assumpsit, brought by Perryman, the appellee, to recover a debt due to him from one James Bacon, on whose estate Giles, the appellant, administered. The writ issued against Giles in his own right, the declaration Counts-on a promise made by him as administrator of Bacon, and the judgment is against him de bonis testatoris. The second count in the declaration was, on demurrer, disposed of by the court against the plaintiff; and makes' no part of this case. To the first count the general issue was pleaded, and a verdict rendered against Giles, as administrator, for the debt of the intestate. He has taken this appeal; and upon his'objections to the record, the opinion of the court will now be pronounced. The principal objections are to the'declaration; and is contended that it does not contain matter enough to warrant a judgment against the defendant in his character of administrator; and that it is defective in not averring assets in his hands to pay the debt, wherewith the .judgment charges him as administrator.

The declaration sets forth a debt due from Bacon, in his lifetime, and his promise to pay it; it sets forth also a reference of this demand between the plaintiff, and the defendant as administrator to persona named by them who rendered an award tor $197, due the plaintiff, which sum the defendant, as administrator of Bacon, undertook and promised to pay, and it charges a breach in the nonpayment by the defendant of this sum. This peculiar manner of declaring originated in a plan to save the statute of limitations, is according to the approved precedents of Wentworth and Chitty, and has the authority of several respectable judicial decisions. Secar vs. Atkinson, 1 H. Blk. Rep. 102, is among the earliest of them. In that case the declaration contained four counts. Three upon promises made by the intestate, and the fourth stated, that the plaintiff accounted with the defendant, as administratrix, of and concerning divers sums of money, &c. owing from the intestate to the plaintiff, and upon that account the intestate was found in arrear, and indebted to the plaintiff, &e. and being so found in arrear and indebted, she; as administratrix, in consideration thereof promised, &c. Exception was taken to this declaration on the score of misjoinder in action; and it was urged, that the first counts, being on the undertaking of the intestate, and the last count onr that of the administratrix herself, the judgment on the former musí; be de bonis testatoris, and on the latter de bonis propriis,. But the court thought otherwise; and distinctly determined that the defendant was charged in all the counts as administratrix, and that the judgment on all the counts should be de. bonis tes ialoris; and in deciding Secar vs. Atkinson, the case of Hawes, vs. Smith, 1 Vent. 268, and 2 Lev. 122, was examined by the. court, and declared irreconcileablc with any true principle of the law. Whitaker vs. Whitaker, 6 Johns. Rep. 112, is a more recent, authority, giving sanction to this mode of declaring. Judge Spencer, who delivered the court’s opinion, not only approves of it, but he states that tbe 'samó defence may be made, to it, as to a count charging the promise made by the testator. In this case, as in the case before us, there is but, a single count in the declaration, and it simply states that the testator was indebted to the plaintiff for money lent and advanced; and being. So thereof indebted, the defendant, as his executor, after his death, in consideration thereof, upon himself assumed to pay, &c. No promise by the testator is stated; and yet it had the approbation of that enlightened court, who declared it a valid declaiation, and that the proper judgment thereon was de bonis iesiatoris. These adjudications, it is perceived, go upon the grounds that this mode of declaring neither pledges the personal responsibility Of the administrator after verdict, nor deprives him of any defence he could have had, if he had been charged with an assumpsit by his intestate; and it is with these qualifications it will he received and adopted by this Court. And the debt due from the deceased, being the Consideration of the promise by the executor dr administrator, it would .be advisable at all times to state it clearly and plainly, and to be prepared to support it by competent proof; as it would be strictly to observe to insert the words, “as executor,” or “as administrator,” after the promise made by the defendant in his Representative character.

The decisions referred to upon this first objection, disposes Of the second made by the defendant to the plaintiff’s declaration;

The plaintiff was under rto necessity to aver assets in the liánds the defendant, sufficient to pay his debt as administrator. It was Open to the defendant to plead plene administravitj or ány Other plea, going to show a defect of assets, as much as it Would have been in an ordinary suit against him upon the promises of his intestate; and if this defence Was within his power, and has been pretermitted by him, he is only placed in the situation of many others, who have defended themselves on wrong and mistaken grounds. The general issue pied, he has chosen to use, and by the verdict and judgment thereon, he has admitted assets to pay the debt claimed of Hm;

Ori the argument of - this cátíse, other objections were made to the record -by the defendant’s counsel, upon which we will also’ offer some short observation#. It was said that the variance betwéen the writ and declaration is fatal, and ought to revérse the judgment; and that the omission.in the latter to aver? that the defendant administered on Baton’s estate, is also a palpable error.

The writ is against the defendant in his oWn right, and the declaration charges him in his representative character, and there is certainly a seeming variance, if he is in time to take advantage of it. This, then, is the question presented to us,. and it will be answered by a recurrence to the authorities. We have been referred to Duvall vs. Craig, 2 Wheat. 45, where the Supreme Court of the United States say, that a variance between the writ and declaration cannot be taken advantage of on general demurrer, but must be pleaded in the early stages of the case, in abatement. But Serjeant Williams, in his excellent notes on Saunders, (1 vol. 318, note 3,) holds & different doctrine. He has brought together all the adjudications on the subject, and has reasoned himself into the belief, that no advantage whatever can, at this day, be had, either of a defective original, or of a variance between it and the declaration. Be this as it may, and it is a point we do not now mean to decide, we are clearly of opinion, that the appellant has lost the opportunity, if he had one, of availing himself of this defect in the proceedings. There is a verdict rendered in this case for the appellee; and by the statutes of amendment and Jeofails, and an act of assembly passed in 1809, ch. 153, the defect mentioned is cured. The statutes of 21 Jac. I, ch. 13, and 5 of Geo. I, ch. 13, particularly point to a variance between the writ and declaration, and by their provisions, after verdict, the judgment shall not be reversed in any court of record for such variance. . The act of 1809, ch. 153, is also explicit on this subject.

The further point in this case is readily answered. It is sufficiently averred in the declaration, that the defendant administered on Bacon’s estate. No form of words is necessary to be used in an averment of this kind. If enough is said to amount to an allegation, that the defendant administered on the estate of the deceased, it will suffice. It is here expressly said that he did so administer; and if the defendant had been so disposed, he might have pleaded ne unques administrator, and concluded to the country, which only can be done where the subject matter of the plea is a denial oí an affirmative allegation in the declaration. If, however, the declaration could be thought vicious on account of making this averment obscurely, surely it is not.such a fatal objection to it as will reverse the judgment. No case, authorising such a conclusion, has been hinted at, and certainly the court have no knowledge of such an authority.

JUDGMENT AI'FIEMED-’  