
    Berthe, Appellant, v. Biggs.
    There is no difference between a bill single or writing obligatory declared on and that set out upon oyer, where it appears that the instrument is declared upon according to its effect: should that part of the paper be set out which, describes the consideration, the use for which it was intended, or the liability of others, it will be surplusage.
    IN the circuit court of Adams county, at May term, 1833, “ Margaret Biggs, by attorney, complained of James Berthe, in custody, &c. — of a plea, that he render unto her the sum of six hundred and ninety-nine dollars, which he owes to, and unjustly detains from her, for that whereas the said defendant, heretofore, to wit, on the 12th day of April, 1829, in Jefferson county, to wit, in the county aforesaid, made his certain writing obligatory, sealed with his seal, and now here to the court shown, the date whereof is the same day and year aforesaid, and thereby, then and there promised, and bound himself to pay, in all the month of January, 1830, to the said plaintiff, by the name and description of Miss Margaret Biggs, the sum of six hundred and ninety-nine dollars value received, yet the said defendant,” &c. The defendant craved oyer, upon Avhich the instrument declared on, with the indorsement thereon, was set out in the words following:
    “ Jefferson county, 15th April, 1829.
    ' “ In all the month of January, 1830,1 promise to pay to Miss Margaret Biggs, the sum of six hundred and ninety-nine dollars, value received in money loaned me, for the use of the estate of Armstrong Ellis deceased, for which this estate stands liable, for the payment of this note.
    “ Witness my hand and seal. James Berthe.” [seal.]
    “ I, B. Blanton, one of the trustees of the estate of the minor heirs of A. Ellis, deceased, will pay the within note, when the estate shall be in a condition to enable me to make payment.
    February, 2d 1820.
    “ B. Blanton.”
    
      The defendant, therefore, demurred; and for cause of demurrer, assigned—
    
      “ 1. Because of a variance in the writing obligatory declared on from the one set.out upon oyer.
    “ 2. Because by the writing obligatory, produced on oyer, it appears, that the defendant is not liable in his individual character, but contracted thereby for the estate of Armstrong Ellis, deceased, and that the estate only, of said Armstrong Ellis, is responsible thereon.
    “3. That by an endorsement upon said writing obligatory, it appears that the estate of Armstrong Ellis is in the hands of one B. Blanton the trustee, who hath undertaken to pay the same, out of the funds of the estate.”
    The court overruled the demurrer, and gave judgment for debt and interest. From which an appeal was taken to this court.
    Vannerson, for appellant.
    Gaines, contra.
    
   Mr. Chief Justice Shahkey

delivered the opinion of the court.

The defendant below demurred, and assigned causes—

1. A variance between the writing declared on and that given on oyer.

2. That the contract created no individual liability, the estate of Ellis only being liable.

3. That the endorsement on the instrument showed the estate of Ellis.to be in the hands of Blanton, the trustee.

There is no ground for the first cause of demurrer. The declaration does not describe the consideration, the use for which it was intended, or the liability of the estate, as expressed in the writing obligatory; but this cannot make a variance, as it would have been surplusage, the description of the obligation being complete without a reference to the purpose for which it was incurred.

The second cause of demurrer is equally groundless. The liability created was personal: although it may have been created for the benefit of the estate, Berthe did not contract in a representative capacity, but merely declared how the money was to be appropriated. The terms of the contract imposed no liability on the estate which could have been enforced by the plaintiff below, even if Berthe had possessed the power to bind it. If the ■ money was appropriated for the benefit of the estate, it became chargeable for the amount to Berthe. There is nothing in the subsequent agreement of Blanton which could change the original liability, as his agreement was at least only conditional, and not sufficient to extinguish the original obligation of Berthe. It is entirely immaterial in whose possession the property was, as the liability did not attach to the property.

The judgment must be affirmed.  