This suit is practically trespass on the case under our old form of pleadings. The plaintiff charges the defendant, (1) as individuals; (2) as executors of John Handley deceased; (3) jointly as individuals and executors with negligence. The defendants filed a demurrer, and among other causes of demurrer, that the facts were not set forth with sufficient certainty to inform them whether they were charged with negligence as individuals, or as executors, or jointly as executors and individuals. The court sustained the' demurrer and of this appellant complains. He cites a number of authorities to show that the court could treat the description as mere surplusage and enter judgment against them according to their liability under the evidence. But it must be noted that defendants at the threshold of the proceedings demanded by demurrer to be informed of the exact nature of their liability. Whatever judgment the court might have entered if defendants had pleaded the general issue and had gone to trial on it, they declined to plead without being informed as to in what character they are charged.
While it is ruled that if one be charged in a representative capacity such as executor or administrator and after trial the proof shows a liability as an individual, the word executor or administrator may be stricken off even after trial, and judgment be entered accordingly, yet in all the cases cited by counsel for appellant, the question was not raised in a single one by demurrer before trial. The very office of a demurrer is to settle whether the party is properly charged in the pleading.
All the assignments of error are overruled and the judgment is affirmed.