(dissenting).
The referee finds that the plaintiff did the work and labor sued for, and that the logs and timber were converted. But he reports in favor of the defendant. And the reason is this : The plaintiff in his summons and complaint described the defendant, as assignee in bankruptcy of Sisson and others. Pie avers in his complaint that the defendant, as such assignee, was indebted for the work and labor and for the logs converted. The facts proved are, that the defendant was appointed assignee in bankruptcy in August, 1873; and that, after such appointment, the plaintiff did for him the work and labor mentionedand that after such appointment he converted the plaintiff’s logs and timber as aforesaid.
The only difficulty is that, in the summons and complaint, the words, “ as assignee ” are added to defendant’s name. The facts alleged and the facts proved show a cause of action against the defendant, personally. One who hires work done owes for it personally. One who converts property is liable for it personally. He cannot escape his liability by claiming to have committed the tort in a representative capacity. If this had been an action for assault and battery ; and the words “ as assignee” had been added to defendant’s name, they would have been surplusage.
This action has nothing to do with the bankruptcy proceedings. It does not belong to the Federal courts, and there was, therefore, no need of the twenty days notice. The plaintiff made a mistake, when he added the words “ as assignee ; ” but this should not defeat the action.
*119Tbe facts are plain and show that the work was done, and the conversion took place after the' appointment. The plaintiff demanded judgment against the defendant, and not the establishment of a claim against the estate. - ,
When the defendant shall settle his account in bankruptcy he will probably be allowed for what he is required to pay, just as he will not be chargeable for property which did not belong to the bankrupt. But it is of no consequence to this case how that may be. He is personally liable for the work done for him and for the goods converted by him. The substantial rights of the defendaut are not affected by the improper description or addition to his name, and the error should be disregarded. (Code of Civil Procedure, §§ 721, 722, 723.)
For these reasons I think the judgment should be reversed and a new trial granted.
Judgment affirmed, with costs. ° ’