The action was brought by the plaintiff as the executor of Mrs. Anne Cotten, for the conversion of a negro woman, Peggy, and her children.
The mother of the slave, Peggy, was bequeathed to Mrs. Cotten by her husband, Roderick Cotten, who died in 1827. Mrs. C. was one of the executors of this will.
Mrs. Anne Cotten died in 1847, leaving a will, in which she bequeathed Peggy and her children to the plaintiff, and he is therein constituted the sole executor. The plaintiff, in 1851, demanded the slaves of the defendant, and brought this suit in 1853.
In 1815, Roderick Cotten gave the mother of Peggy to Richard C. Cotten, who retained possession of her and her children until 1853, when the defendant intermarried with Elizabeth, the daughter of R. C. Cotten, and Peggy and her children were given off to them.
There was evidence tending to show that the defendant had assented to the legacy in the slaves bequeathed by his mother's will, and his Honor was called on by the defendant's counsel to charge the jury, that if they should believe he had thus assented, his form of action had been misconceived, and he could not recover; that he should have sued in his individual *Page 356 character and not as executor, and his Honor did so charge. Plaintiff excepted.
Under this, and other instruction not material to be noticed, the jury found a verdict for defendant, and the plaintiff appealed. It is well settled, that where an executor sues upon the possession of his testator, he must sue as executor, because he must make profert in his declaration of his letters testamentary; and where he sues upon his own possession, he must declare in his own name, because his possession has fixed him with assets. It is equally well settled, that when the executor sues "as executor," when in fact the action is brought on his own possession, the words "as executor" are considered as mere surplusage.Hornsey v. Dimocke, 1st Ventris 119; Comyns' Digest Pleader, (2 D. 1.) it is not a question of amendment; there is no necessity for striking out the words; the Court consider them as not being in the declaration. If then the plaintiff did assent to the legacy to himself, the action is well brought. Upon this point, (that of the form of action,) his Honor left it as a question of fact to the jury, to say whether there had been an assent on the part of the plaintiff to the legacies to him, and instructed them if they found an assent, then their verdict should be for the defendant. The prayer of the defendant was for an instruction, that the evidence proved an assent, and if so, prayed the Court to charge the jury that the form of the action was misconceived. We have shown that if there was an assent, the action was not misconceived; in this part of the charge there is no error. Upon the other points ruled by his Honor, it is unnecessary to remark; they were in favor of the plaintiff, the appellant, and of course, he has no cause of complaint; the ruling, however, we may say, was entirely correct. *Page 357
For the error with respect to the form of the action, the judgment is reversed, and a venire de novo awarded.
PER CURIAM. Judgment reversed.