The precise question presented by the amendment of the complaint in the court below, has not been decided by this court.
In Tate v. Shackelford’s Adm’r, 24 Ala. 510, the plaintiff, styling himself administrator in right of his wife of the estate of G-eo. W. Hail, deceased, declared on a contract made with himself personally. Shackelford died pending the suit, and the suit was revived in the name of his personal representative. This was excepted to, and assigned as error. This court held, that the words administrator, &c., were descriptive of the person, and that the suit was properly revived. To the same effect is Arrington v. Hair, 19 Ala. 243; Gibson v. Land, 27 Ala. 117.
In the case of Tate v. Shackelford, supra, this court laid down the rule, that “the character in which a party sues must be determined, not from the description of himself which he gives in the caption of the declaration, but from the body of the pleading.” That suit was commenced before the Code went into operation, and under the law as it then existed. We are satisfied with the rule expressed, and hold that, in all such cases, the character in which a plaintiff sues must be determined by the cause of action he describes in his declaration, rather than the *267descriptive words employed in the caption. — See Chapman v. Spence, 22 Ala. 688.
The original complaint which we are considering, discloses the representative character of the plaintiff, both in the caption, and in the body of the complaint. Hence we need not decide whether the same rule prevails now as formerly, or whether the caption, or marginal statement of the parties, is a part of the complaint. "We defer its consideration, until it shall come before us.
It is hero contended, that the amendment which was allowed in this case, was, in effect, the striking out of a sole party plaintiff, and inserting another. If this be the case, it was unauthorized by the Code, (§ 2403,) as decided by this court in Leaird v. Moore, 27 Ala. 326. Without intending to impair the force of that decision, we think the policy of our law, as disclosed in the Code, will not justify us in materially extending its principles. One object of the Code certainly was, to discourage technical objections, and to secure a trial on the merits of each controversy. — See §§ 2401-2-3-4-5.
The question here is different from the one presented in Leaird v. Moore. The name of the party plaintiff is not sought to be changed. The object of the amendment was to describe more definitely the character of the claim on which the plaintiff’ sued. The original complaint claimed as administrator; and under the liberal provisions of the Code above cited, we think the amendment was clearly permissible.
Adair, the special administrator, was, when offered, a competent witness. He had been superseded by the appointment of an administrator in chief; and under the order of the court, such administrator in chief had been substituted as the plaintff of record. Although the special administrator, while in. office, was authorized to sue, (Code, § 1677,) yet his entire authority over the assets of the estate ceased when he was superseded; and it then became his duty to deliver to the rightful administrator, on demand, all the assets of the deceased that were in Ms hands. He had no right further to maintain the suit.— Code, §§ 1679, 1924. Adair, not being a party to the *268record when lie was offered as a witness, did not come within the provisions of the Code, §§ 2313-14.
In the case of Radford v. Upson, 29 Ala. 188, we held, that an agreement by which one party received from another a -family of slaves, (a part of whom were too small to labor, and others sickly,) to be boarded for their work, would constitute a valid contract of hiring, if entered into in good faith. That case would be an authority for holding, in the present suit, that the agreement under which appellant obtained the possession of the slave Nias,, amounts to a contract of hiring, if any definite time had been agreed on. The agreement, however, being that Farrow should keep him until called for, and pay nothing for his hire, forbids that we should so hold. A possession, thus acquired, might, in the discretion of the owner, continue for one or for five years, or it might be terminated in one hour. "We think this was not a contract, on which either party, before entering upon its performance, could have been sued for its breach. Like all other gratuitous promises, no - right of action could arise from its nonobservance. — Edwards on Bailments, 120-1; ib. 58.
If the property delivered in this case had been any other species of chattel, all would at once agree that it was that description of bailment called deposit, or deposition. — Edwards on Bailments, 35, 47. "We cannot perceive from the terms of the agreement that the bailee stipulated to do more than keep the slave for the use of the bailor, lie did not agree, so far as the evidence discloses, to do any act about the slave. True, he impliedly bound himself to feed him; but the same thing would be true if he had received any other animal on deposit.
It may be reasonably implied from the facts in this case that the bailee had the right to use and employ the slave Nias. This view is not at all inconsistent with the character of the bailment as a deposit. Such use is always permissible, where the consent of the depositor is actually given, or can be reasonably presumed from the circumstances. — Edwards on Bailments, 89.
As we have seen, an agreement to make or receive a deposit or mandate, is not a contract. It is without eon-*269sideration. It may be disregarded, or retracted by either party, so long as it remains purely executory. It is a mere power, revocable by either party; and the death of either, before performance is entered upon, operates a revocation.— Edwards on Bailments, 120. The agreement, however, assumes a new character as soon as the deposit or mandate is received. It then ceases to be a mere power, and becomes a contract. — Edwards on Bailments, 58, 109-10.
The slave Nias being placed with appellant as a deposit, and the gratuitous promise being then raised to the dignity of a contract, by part execution, the death of the bailor did not put an end to it, or convert the bailee into a wrong-doer. After demand made, he would have been liable to an action; till then, if the contract be correctly set forth in the bill of exceptions, he was not liable for hire. — Edwards on Bailments, 88.
The charge of the court, in reference to the slaves Jack and Ransom, is equally indefensible. Adair, the special administrator, hired to the appellant, at an agreed price, the slaves last named, until an administrator in chief should be appointed. He violated the contract, by taking away the slaves before the time of hiring expired. This defeats the plaintiff’s right of recovery, unless the facts of this case exempt it from the operation of the rule. — Perry v. Hewlett, 5 Porter, 318; Petty v. Gayle, 25 Ala. 472.
It is contended that Adair, the special administrator, had no authority to make the contract he did in reference to the slaves Jack and Ransom; and that therefore the appellant is liable for hire for the time he had their services. The answer to this is, that Adair cannot set up his own want of authority. He instituted the present suit, and it is only continued in the name of the administrator in chief. He is estopped from denying his own authority to make the contract. — Pistole v. Street, 5 Porter, 64; Fambro v. Gantt, 12 Ala. 298; Swink v. Snodgrass, 17 Ala. 653.
Whether the present administrator can maintain an action for the hire of Jack and Ransom, we do not now decide.
*270There is nothing in the argument, based on the fact that the parties, in making the contract last above considered, supposed an administrator with general powers would be appointed at the next regular term of the probate court of Bussell, and that the appellant was not disturbed in the possession until after the next regular term of that court. The contract was, that Farrow was to have the slaves until after the appointment of an administrator in chief; and his possession was terminated without his consent, before the happening of that event.
The charge of the circuit judge was in conflict with this opinion; and for the errors pointed out, the judgment of the court below is reversed, and the cause remanded.
Rice, C. J., not sitting.