The first question is, was the plaintiff a creditor of the deceased ?
By the first section of the act, (1 R L. 316,) every creditor, whether by simple contract or specialty, may maintain his action against the heirs at law of any debtor.
At the common law the heir was not liable on the simple contract of his ancestor; nor on a specialty, unless the heir was named. The intent of the statute was, to enlarge the remedy. That is done in general terms, by saying every creditor may maintain his action. As this is a remedial statute, it should be construed liberally, so as to advance the 'remedy. Every person, who holds a demand arising on simple contract or specialty, seems to be within the meaning of this section. Such persons are certainly creditors within the general acceptation of the term, whether a right of action accrued in the life time of the deceased; or subsequently, by the transfer of negotiable paper. They would be recognized as such in a course of administration. There is nothing in the words of the section, confining the remedy to persons who were creditors of the ancestor at the time of his death. If such be the construction, great inconveniences would result. In the case of an assignment by an insolvent debtor, who was the payee of a note, if the assignee is not a creditor within the meaning of the act, there is no remedy at law against the heir; for the insolvent cannot sue. So, also, the executors of a deceased payee of a note may not be creditors of the deceased maker in his life time ; and yet it would not, I apprehend, be contended that they would be without the act, because the maker happened to die before their testator.
My opinion is, that under this section the plaintiff may sustain the action.
But it is contended that the proviso, in the third section is decisive of the question. This section declares, that no judgment against any executor or administrator, for any debt, damages, or sum of money, in right of his testator or intestate, sliallbaadjudgeda bar to any subsequent actionUgainst *479the heirs ; but that the heirs shall be liable as if no such judgment had been recovered; provided, that nothing therein contained shall be construed to make any heirs liable to any other person than a creditor of the deceased by simple contract or specialty, in like manner as is expressed in the first section of the act, and not otherwise.
The enacting part of this section speaks of debts, damages, or sums of money, for which judgment may be recovered against the executor. Damages may be recovered against an executor or administrator, in trespass; (1 R. L. 311-12;) but no action lies against the heir. When it is declared generally, that a recovery for any of the causes specified, shall not be a bar to a subsequent action against the heir, it would seem to imply, that an action would lie against the heir, when the recovery had been against the executor for damages, although not arising on simple contract or specialty. I apprehend the proviso was intended to guard against such a construction; and explicitly to declare that the heir should not be liable except as specified in the first section. But the proviso does not profess to vary its operation. On the contrary, it expressly refers to it; and declares that the heir shall be liable in like manner as is expressed in that section; and not otherwise.
The variance between the declaration and proof is not material. The plaintiff may declare that an endorsementis made on the date of a note, although it is made afterwards.
It is also urged that the proof did not maintain the issue; which is, that the intestate did not owe the plaintiff. The allegation in this declaration is; that the intestate, in his life time, became liable to pay the plaintiff; and by reason of the premises, an action accrued to the plaintiff to demand of the heirs at law. I consider the latter allegation as the substantial part. The other seems to me immaterial. If so, the defendants tendered an immaterial issue, by denying any indebtedness of S. Parsons, jun. in his life time, to the plaintiff.
The defendants were called on to answer whether they were liable on this note. If they are, then it cannot be material to inquire, whether the plaintiff had any claim against *480the intestate, in his life time. If the issue is misjoined, the objection is removed by the statute of jeofails, (1 R. L. 119.) It is a rule, that where a defendant pleads an insufficient plea, whereon issue is joined, and a verdict for the plaintiff; no advantage shall be taken by the defendant of his own bad pleading. (5 Com. Dig. Pleader, (E. 37).)
I am of opinion, that the plaintiff is entitled to retain his verdict on the first count; and that the motion for a new trial be denied.
New trial denied.