Filson v. Dunbar

The opinion of the court was delivered by Lowrie, J. The debt sued for seems to belong to Mrs. Eilson, as widow, and not as administratrix of her late husband; and therefore it was a mistake to sue in her character of administratrix. But this mistake is of a kind that is always overlooked, because it never affects the merits of the cause; and therefore this plaintiff ought not, for this, to have been turned out of court. The cause is tried before the jury, not on the style of the suit, but on the facts averréd and denied. In this instance the plaintiff avers that she sold and delivered goods to the defendant, and he denies this. Her case shows that she is the legal plaintiff, and the description of her as administratrix goes for nothing. If it appeared that she had sold the goods as administratrix, and was collecting their price for the estate, nobody would hesitate in adopting this view: 8 Ser. & R. 124; 2 Penn. R. 490. But the rule applies even Avhen the description does not truly indicate the relation of the party to the money or property claimed; as when one sues or is sued as executor, instead of as trustee or devisee: 5 State R. 510; 7 Id. 243: or as administrator, instead of as husband of his late wife: 6 Id. 348. A description of the character in which a party sues or is sued [477] must always be treated as surplusage when, the facts averred and proved establish the right or duty independent of the description. Judgment reversed and a new trial awarded.