We see no reason to doubt the justice of the plaintiff’s demand.
If the case of Ord v. Fenwick furnished a legal objection to the plaintiff’s recovery in the present form of action, it would seem, that he is without remedy; and the error or oversight of the attorney of Richardson would effect the loss of the debt. Should he bring his action as executor, the variance between this form of suit and the recovery in Baltimore, would be urged against him ; and if he sued as administrator, he might be defeated by the production of the letters testamentary, which would shew that he was executor, and not administrator. But circumstanced as this case is, we think the suit may be supported : if the defendant’s counsel should think otherwise, we will at any time seal a bill of exceptions.
The jury gave a verdict for the principal sum and interest, without leaving the court.
A motion for a new trial was afterwards made, and overruled by the court. A bill of exceptions was afterwards sealed, at the instance of the defendants’ counsel.
The argument of this case, afterwards, on the 31st March [808, came on before the Supreme Court in Philadelphia, when after fully hearing Mr. J. Read of counsel, with the defendants below, Tilghman C. J. and Brackenridge J. affirmed the judgment of the Circuit Couft, without hearing Mr. Meredith on the other side.
The chief justice observed, that even supposing the record of the judgment in Baltimore county not to be good evidence, which was denied, still it appears in evidence, that O’Brian was the executor of Francis Coskrey, and as such liable to pay the bond, in which his testator'was surety for Michael Coskrey; and being so liable, he had paid it. This certainly shewed a good cause of action against the defendant below, who was the principal in the bond; and the plaintiff might name himself executor, or not, in the suit at his election.