delivered the opinion of the court:
The interest in all the goods, chattels, rights and credits, at the death of the party, is vested in his executor or administrator, as the case may be, whether he has reduced them into his actual possession or not. The interest which such representative takes in the property of the deceased, is very different from that which belongs to him in his own right. Instead of being an absolute interest it is only temporary and qualified: he is entitled to it in auter droit only, and is entrusted merely with the custody and distribution of the effects. Com. Dig. Adm'r B. 1, 2, 10; 9 Co. 88 b. As the representative, he may maintain an action on simple contract, in writing, or not in writing, either express, or implied, made with the deceased, whether the same became due and payable before, or after death. But he must sue in his representative capacity, and expressly name himself as such. 1 H. Black, 528; Portman vs. Cane, 2 L. Raym, 1413; Cockerill vs. Kynaston, 4 T. R. 278; 1 Bac. Ab. 91; Rutland vs. Rutland, Cro. Eliz. 377; Com. Dig. Adm. B. 1, 3; D. 1, 2; Toller on Exec. 439. The authorities as to the character in which the plaintiff should sue, are well calculated to create doubt and confusion. Yet the lines of distinction are strongly marked and well defined, and, when once discovered, must carry conviction of their correctness. In contradistinction to the cases in which the plaintiff must bring his action, strictly in his representative character, it is laid down in 5 T. R. 234; 2 T. R. 477; 5 Wend. 36; and other reporters, that if the defendant receives money, belonging to the estate, after the death of the testate or intestate, or on a bond executed to him after his death, to secure a debt, due by simple contract, they account to the plaintiff, personally, and not in his representative character.
The declaration in this case is, u That Robert A. Watkins, administrator,” &c., complains, &c., of a plea u that they render unto him the sum;” &c., nor does the breach allege that they refused to pay him as administrator.
The plaintiff no where shows that he sues in his representative character, either in stating his cause of action, or in the breach for the non-performance of it. In the case of Brown vs. Hicks, 1 Ark. R. 242, the court says: “ There is a striking difference between the' averment in the declaration, executor, or being executor as aforesaid,” and the words u as executor as aforesaid. In the one instance, executor, or being executor as aforesaid, are mere words of description, having exclusive reference to personal, identity. In the other, the term as executor as aforesaid, has but one meaning which is fixed by law, and is that the party sues, or is sued in his representative character.” This principle laid down in the case last referred to, is fully sustained by abundant authority, and not only applicable to the case before us, but correctly decided.
The judgment is not so formal as it might be; for, upon.sustaining the demurrer, in which there is no error in the court below, it should have been for the defendant, in bar of the judgment. It is, however not so irregular as to justify a reversal. The plaintiff, failing to file a sufficient declaration, as the court says, (for it does not appear whether leave was asked to amend or not;) the case is dismissed, and judgment entered, de bonis propriis, &c., we think, correctly, for, as the plaintiff did not bring bis suit as administrator, in the absence of any legislative provision, he must pay the costs. The judgment, of the circuit court is affirmed.