Sasscer v. Walker's Ex'rs

delivered the opinion of the court.

The record submitted to us, presents this case, vide statement, ante p. 103. Which, then, committed the first fault in pleading, is an inquiry, thrown upon us by the demurrer.

The appellees being styled in the writ, “ executors of William Walker,” and merely called in the declaration, (after reciting the writ,) “ the said plaintiffs,” the words ££ the said plaintiffs,” in the declaration, must be understood, as having reference to the plaintiffs as described in the writ, and to mean the plaintiffs, executors of William Walker; and being called in the replication throughout £C executors of William Walker,” and in the demurrer ££ the said plaintiffs,” as in the declaration, which must be understood in the same manner as the declaration, there is perfect correspondence, between the writ, declaration, replication, and demurrer; and if the appeal bond on which the suit was brought, and which was given to them as executors, on the appeal from the judgment obtained by them in that character against Kemp, was a contract on which they could sustain an action only in their individual, and not in their representative capacity, then the addition of the word ££ executors,” in the writ, &e. might be construed and treated as a superfluous description, and not irregular, the demand being the same. 1 Chitty Pl. 253. Lloyd vs. Williams, 2 Wm. Black, 722. Rogers vs. Jenkins, 1 Bos. and Pul. 383. 384. King and others vs. Thorn. 1 Term. Rep. 266 (488.) 1 Vern. 119. 6. Com. Dig. 307, Title Pleader. And though where a plaintiff sues on a *108contract in his own right, if the writ be in the detinet only, it is irregular, yet since the statute 4 & 5 Anne 16, it cannot' be taken advantage of on a general demurrer. 6 Com. Dig. 306. Title Pleader. The appellees, however, were not bound to sue in their individual character, but had a> right to sue in either their individual, or representative capacity. Wherever the money when recovered, would be assets in the hands of the executor, he may sue in his representative capacity. 5 Co. Rep. 31. King and others vs. Thorn. 1 Term. Rep. 265, (487.)

In Hosier vs. Lord Arundel, 3 Bos. and Pul. 7, decided in the year 1802, a different notion seems to have been entertained; but afterwards in the year 1805, in Cowell and wife vs. Watts, 6 East. 405, the court of Kings Bench returned to the old rule, “ that where money when recovered would be assets, the executor may declare for it in his representative character,” accompanied by an expression of regret, that it had ever been departed from. And the same rule is recognized, and treated as settled law, in 1 Saunders Pl. and Ev. 610, &c.

The bond upon which this suit was brought, being given to the appellees as the executors of William Walker'1 s will, on an appeal from a judgment obtained by them in that character against Kemp, the money when recovered, will be assets their hands. They had a right therefore to sue in their representative capacity; and considering this suit as brought in that character, it was properly brought.

We come then to the rejoinder, the matter of which is clearly no sufficient bar to the action. Every word of it may be true, (and which the demurrer admits,) and yet the appellees be entitled to recover. They were under no obligation to entitle them to proceed upon the appeal bond, to have issued a fieri facias, or venditioni exponas; and when issued, there was nothing to prevent their countermanding either of them, without impairing their right to put the appeal bond in suit.

*109The mere taking the property under the fieri facias, was not itself equivalent to payment, and did not amount to a satisfaction of the judgment. The plaintiff might have countermanded the venditioni exponas, and restored the property at the instance, and for the accommodation of the defendant in the judgment, without having received payment of, or satisfaction for any part of it; and no payment, satisfaction or discharge is alleged in the rejoinder, which is no answer to the replication assigning the breaches of the condition of the bond; which was, that Kemp, the defendant in the judgment appealed from, should prosecute the appeal with effect, and in case the judgment should be affirmed, pay to the appellees, executors, &c. the debt, damages, &c. The condition of the bond, as the rejoinder admits, was not performed. The appeal was not prosecuted with effect, and the return of the sheriff did not amount to a payment, and satisfaction of the judgment according to the condition of the bond, and is not pleaded as such. If the appellees had taken issue on the rejoinder, the only matter referred to the jury would have been, whether a fieri facias, and venditioni exponas, were issued and returned as alleged in the rejoinder, which may well have been, yet the judgment remained altogether unsatisfied, either in fact, or in contemplation of law. The demurrer therefore to the rejoinder in this case was properly sustained. In Southcote vs. Braithwaite, 1 Term. Rep. 624, it was decided that bail in error, could not surrender the principal, but were liable at all events, in case the judgment was affirmed, and not entitled to be relieved, though the principal became bankrupt pending the writ of error. And in Perkins vs. Pettit and Yale, 2 Bos. and Pul. 440, which was a much stronger case than this, it was held upon general demurrer to be perfectly clear, that if a defendant in error, upon the judgment being affirmed, take into execution the body of the plaintiff in error, for the debt, damages and costs in error, he does not thereby discharge the bail in error, but may sue them upon their recognizance.

*110But instead of swearing a jury of enquiry, which should have been done, on the demurrer to the rejoinder being ruled good; the court below proceeded to enter up a final judgment for the appellees, (the plaintiffs there,) which is clearly an error, for which the judgment would be reversed, were we not restrained by the act of 1825, ch. 117, sec. 1, which provides, that “ the Court of .Appeals shall not reverse any judgment, on any point, or question, which shall not appear to have been presented to the County Court, and upon which that court may have rendered judgment. And it does not appear that any point or question relating to, or involved in the final judgment was presented, and decided by the County Court. It is not like the case of Charlotte Hall School vs. Greenwell, 4 Gill & Johns. 407, where there was a motion in arrest of judgment, which presented to the court the question, whether any judgment should be rendered.

JUDGMENT AFFIRMED.