Oliver v. Hearne

GOLDTHWAITE, J. The declaration describes the defendant as .administrator of the estate of John McGill, deceased, and alledges the making of a promissory note by the administrator, whereby he promised, as such administrator, to pay, &c. The judgment is rendered to be levied of the goods and chattels of McGill in the hands of the administrator. In our opinion this judgment is erroneous, because the suit is, in fact, against the administrator as an individual and not in his representative capacity. The words, administrator, &c. must be considered as descripiio persona. The judgment must be reversed and here rendered de bonis propriis at the cost of the plaintiff in error, as, in our opinion, the error is one of a clerical nature, which could have been amended in the Court below, under the statute of 1824. [Digest, 266, §48; Weatherford v. Weatherford, 8 Porter, 171.]