For a variance between the count and the evidence, the court may direct a nonsuit. But for *25a variance between the count and the writ, the defendant must demur, plead in abatement, or move in arrest of judgment. This is a variance between the count and the writ; the writ charging the defendant personally, and the count charging him as executor. The defendant has neither pleaded in abatement, nor demurred; but pleaded to issue. This issue must be tried. The evidence supports the allegations in the declaration. The jury may find a verdict against the defendant as executor; and the defendant may move in arrest of judgment.
Swinb, 395. Bane's case, 9 Co. 93. Wheeler v. Collier, Cro. El. 406. Hob. 208. 2 Ld.Ray 1215. 2 Esp. 23. 1 Ventr. 119. 1 T. Rep. 487. 1 T. Rep. 691.The jury found a verdict against the defendant as executor for 17l. 7s. 3d.
A motion in arrest of judgment was made; and a rule to shew cause was entered. It was not argued till December term, 1793.
Young, for the plaintiff, shewed cause against the motion.
An executor is bound by a promise to pay, though he has no assets.
The addition of executor will be rejected as surplusage. Brown v. Dunnery—Wallis v. Lewis.
The reference was as executor; so is the declaration. It is according to the truth of the case.—King v. Thom.
If an executor refer a dispute to an arbitration, he is bound by the award ; and cannot afterwards plead plene administravit—Barry v. Rush. And the verdict being against the defendant as executor, cannot alter the legal effect of the award on the submission.
Woods, for the rule. The cases only say, that, where there is a promise, the executor shall not say, there are no assets. The case of Barry v. Rush does not say, that a judgment can be given, though the writ be against a defendant personally, and the declaration against him as executor. No case says so : and there is a material difference between an action against a defendant personally, and against him as executor.
President. Justice Buller determines the case of Barry v. Rush on this point, that it was an action on a bond, by which the defendant bound himself, his heirs, executors, &c. to pay; an express, solemn, and personal promise. I think this the true ground of the decision. But if the doctrine laid down by Justice Asburst can be extended generally to all cases, and if our opinion should *26be against the plaintiff in this motion; we may, on his motion (on the ground, that the submission and award amounts to an admission of assets, or a promise, on consideration, to pay) set aside the verdict, as contrary to the legal effect of those facts. For, (on this ground) the declaration would, in effect, state a personal promise, and would not vary from the writ. Justice, as well as true interest, seems to suggest, that the defendant ought to settle this matter out of doors, without more delay.
Note.—The case of Pearson v. Henry, which denies, that a reference, by an executor or administrator, to an arbitration, is, of itself, an admission of assets, was not known here, when the preceding case was argued. However, no decision was called for; as the defendant gave judgment, with some delay of execution.