It is insisted in the first place, that there is a misjoin-der of counts ; that the defendant below is charged in the first count as executor, and in the second in his individual character. Chitty, in his first, volume, b says that the question of misjoinder of counts depends on the form of the action, rather than on its subject matter; and that when either the same plea may be plead to all the counts, or the same judgement may be rendered on them all, though they may require different pleas, they may be joined. Again, in Cowper’s Reports,c Justice Buller, in 'stating the difference between charging a defendant in his-fiduciary character of executor, and personally, says, that in the former case he is named as executor in the beginning of the declaration, and afterwards stated to be liable as such; but in the latter, he is charged generally, as any other person, and a general charge is a personal one. Now, without adducing any other authorities, if we test the first count in this declaration by these rules, I think it will be found to contain a personal charge against the defendant. He is charged in the debet and detinet; is not named in the beginning of the declaration as executor, and although afterwards, in alleging the facts out of which his liability arose, it became necessary to state that he was appointed executor, took upon himself the execution of the will, sold the property, &c. yet the form of the action, in all its aspects, is evidently against him in his individual character. The plea of nil debet would have answered both counts, and. the judgement upon each would be de bonis propriis. There i.s clearly then, no misjoinder of counts.
It is, however, urged that the first count is in itself defective in several respects. In the first place, this defect is said to consist in not stating the promise to pay the legacy, to have been in writing. It is at least questionable, whether statute of frauds requires that a promise of this kind should be in writing; for its language is, that no action shall be brought whereby to charge any executor or administrator upon any special promise, to , answer any debt or damages out of his own estate, unless the. *587same be in writing, &c. But if it were conceded, that such a promise to sustain an action must be in writing, the books shew beyond a doubt that it need not be thus stated in the declaration. a
But it is further contended, that no action will lie in a court of common law to recover a legacy. This position, to a certain extent, and with certain qualifications, may be correct. There have been different decisions in the English Courts, at different periods, and with different modifications as to this point. But let this question stand as it may in England, the latter part of the forty-second section of the act of 1803,b puts it to rest, in this State. It is there, after providing the. action of account, as between executor and executor, and for an executor, when a residuary legatee, and other residuary legatees, enacted, “that any person having a legacy bequeathed in any last will and testament, may sue for and recover the same at common law.” These words are too unequivocal to be misunderstood. The action at law is clearly given, and as the kind of action is not mentioned, we think that debt will lie. For where a remedy for the recovery of money is given by statute, and the description of aGtion not named, debt is the proper action. This might be further shewn by authorities referred to in argument, and others at hand; but we conceive it unnecessary. We are also of opinion that the subsequent act of 1812, giving aremedy by petition to the County. Court, does not repeal, but is cumulative of the remedy given by that of 1803. .Whilst however, we intimate this much as to the action at common law, we are aware that it is obnoxious to the objections urged with so much' force by the English Judges, and are decidedly of opinion that Chancery is the more suitable tribunal for the adjustment of such claims, where from the peculiar manner of proceeding, the rights of the executor may be secured, and an account and ample remedy given to the legatee. It is further said, that the first count in this declaration is defective in other respects. These we deem it unnecessary to notice, for if this count were bad, the defendant below should have demurred to it, and not to the whole declaration. He however, chose the latter method, and in that state of the pleadings, as the second count is good, the demurrer was properly overruled. c
The only remaining question of moment is, whether *588the Circuit Court erred in rendering final judgement alter having overruled the demurrer, without the intervention of a jury. This we will examine as it stands at common law, and then with reference to our own statute. It must be conceded, that as to this point, the question is the same as if the defendant had failed to plead at first, and judgement thereupon was rendered by default. It is indeed, to all intents and purposes^ a judgement bv default, or for want of a plea. The action being debt, the sum sued for is certain, and the recovery must be in nu-mero. In such a case, if judgement be by default, or confession, it is the course of the Courts, both of King’s Bench and Common Pleas in England, to tax the damages for the detention of the debt, if the plaintiff desires it. a In the case cited, it is said expressly, that the suing out of the writ of inquiry is at the election of the plaintiff, and not of the defendant. In Fenton against Gar-lich, b this principle is laid down, that in actions of debt, when a judgement by default is obtained, the plaintiff need not issue a writ of inquiry to ascertain the interest or damages, but the same may be ascertained by the clerk. This action was indeed founded on a judgement. But the Court, in delivering its opinion, do not assign this as their reason for the judgement; but on the contrary, expressly distinguish that case from the case of Messin against Massareene, on the ground that the one was debt, and the other assumpsit. c In 1 Chittv’s Pleadings 214, the author says, that the action of debt is preferable to assumpsit or covenant, for this reason, that the judgement in debt by nil elicit, &c. is final, and execution may be taken out without a writ of inquiry, which is usually necessary in assumpsit and covenant. The effect then of the common law principles upon the present case is, as I conceive, this: the plaintiff sues in debt, for a sum certain, the defendant instead of denying his claim, demurs; this demurrer is overruled. By the demurrer, the facts are taken to be true so far as they were well pleaded, and the demurrer being overruled, the facts in legal contemplation, are true as stated in the declaration. There was then due from defendant to plaintiff, sixteen hundred dollars, at the time of the issuance of the writ, the time from which the interest by way of damages was ascertained by the Court. This, we think, they had a right to do by the principles of the common law, unless the plain*589tiff elected his writ of inquiry. As for the statute, it is evidently cumulative, and pi o vides for cases regardless of the character of the action, in which perhaps the Court by the commonlawcouldnothave ascertained the damages.
A majority of the Court are of opinion that thi judgement must be affirmed.
The Chief Justice and Judge Perry not sitting.Page 197.
Page 292*
1 Cliitt. PI. 237. 1 Saund, 276^
Laws Ala, 333*
1 Chitt. 643, marginal page*
2 Saund. 106, 107.
6 John, 287.
TeimR. 493.