By the Court,
Lacy, J.This is a suit by an administrator, in his representative character, upon a note or bond, executed to him, with the addition and style of “administrator,” &c. The question raised by the record is, whether the plaintiff can support an action upon such an instrument, in his representative capacity. He might certainly sue in his own name on account of the priority of contract, between the parties, and the rule, to be deduced from all the authorities, seems to be, that where the money, when collected, would be assets, the administrator may sue, upon contracts with himself, either in his individual or representative character. Lyon vs. Evans, 1 Ark. Rep. 365. The authorities clearly show this law in England to be settled, that where an executor takes a bond to himself, as executor, he must sue on it in his own name; but it is otherwise where he takes a promissory note. The true rule in that country seems to be that where the executor takes a security of a higher nature, he becomes responsible for the debt, and if he sue ou the obligation, the money received is not assets, and therefore he must sue in his own name, and not as executor. The reason of the rule is obvious, by the taking of the higher security he makes the debt his own, and is chargeable immediately as so much assets in his hands; and should he even fail to collect the debt, he would still be bound, because the money, when collected, would not be assets. An administrator is not allowed in England to sell for credit; and if lie does so, he becomes personally liable for the amount credited. Our statutes have made an important change in the rule as to selling on credit. It makes it the duty of the administrator to sell on credit, provided he deem it advantageous to the estate, not giving a greater time than twelve months, and it requires him to take notes or bonds, with approved security, for the payment. Rev. St. chap. IV, sec. 65. It is evident from this provision, that it would be unreasonable as well as unjust, to charge the administrator, individually, for doing an act that the law made it his duly to perform in his representative capacity. The taking of a note or bond by the administrator could not, according to the regulations of our statute, charge, him unconditionally with assets; on the contrary the act regards the bond or note so taken, as, conditionally, assets in his hands; the money, when collected, is still assets for purposes of distribution; and upon an action against the administrator for a devasta-vit, we take it, that it would be a good defence for him to show that at the lime he gave the credit and took the note or bond, the principal and security were goods, and that he had been guilty of ho laches in the collection of the money. The facts, if rightly put in issue and proved, would bar a recovery if even the debt was lost by subsequent insolvency. The law requiring him to give the credit if he thinks proper to do so, and of course he is left at full liberty to exercise his judgment and discretion; and if the debt, under such circumstances., should be lost, it must be charged to the policy of the act, and not to the waste or misconduct of the administrator. The note or bond must show in the body of it or upon its face, in what character it was taken; whether payable to the administrator, in his representative capacity, or to him individually. The administrator may elect to treat the debt as his own, or that of his testators, and as he considers it, so will he be bound. If the note or bond be executed to him as administrator, or by the use of any other terms, clearly indicating the debt to be due the estate of the testator, then the administrator should sue on it in his representative capacity, and the money when collected will be assets. But if the note be executed to him “administrator” or “being administrator,” then the law will hold it to be a note executed to him in his private right, such words operating as mere matter of description; and consequently suit can only be maintained on it in his own name. This position being true, of course the de" murrer (o the declaration ought to have been sustained, for the note given in oyer, is a bond executed to the plaintiff", “administrator of the estate of William Crabtree, deceased,” which words we hold to be mere personal description of the plaintiff. The judgment of the court below is, therefore, ordered to be reversed.