delivered the opinion of the court. This is an appeal in an action of assumpsit, brought by Perryman, the appellee, to recover a debt due to him from one James Bacon, on whose estate Giles, the appellant, administered. The writ issued against Giles in his own right, the declaration Counts-on a promise made by him as administrator of Bacon, and the judgment is against him de bonis testatoris. The second count in the declaration was, on demurrer, disposed of by the court against the plaintiff; and makes' no part of this case. To the first count the general issue was pleaded, and a verdict rendered against Giles, as administrator, for the debt of the intestate. He has taken this appeal; and upon his'objections to the record, the opinion of the court will now be pronounced. The principal objections are to the'declaration; and is contended that it does not contain matter enough to warrant a judgment against the defendant in his character of administrator; and that it is defective in not averring assets in his hands to pay the debt, wherewith the .judgment charges him as administrator.
The declaration sets forth a debt due from Bacon, in his lifetime, and his promise to pay it; it sets forth also a reference of this demand between the plaintiff, and the defendant as administrator to persona named by them who rendered an award tor *169$197, due the plaintiff, which sum the defendant, as administrator of Bacon, undertook and promised to pay, and it charges a breach in the nonpayment by the defendant of this sum. This peculiar manner of declaring originated in a plan to save the statute of limitations, is according to the approved precedents of Wentworth and Chitty, and has the authority of several respectable judicial decisions. Secar vs. Atkinson, 1 H. Blk. Rep. 102, is among the earliest of them. In that case the declaration contained four counts. Three upon promises made by the intestate, and the fourth stated, that the plaintiff accounted with the defendant, as administratrix, of and concerning divers sums of money, &c. owing from the intestate to the plaintiff, and upon that account the intestate was found in arrear, and indebted to the plaintiff, &e. and being so found in arrear and indebted, she; as administratrix, in consideration thereof promised, &c. Exception was taken to this declaration on the score of misjoinder in action; and it was urged, that the first counts, being on the undertaking of the intestate, and the last count onr that of the administratrix herself, the judgment on the former musí; be de bonis testatoris, and on the latter de bonis propriis,. But the court thought otherwise; and distinctly determined that the defendant was charged in all the counts as administratrix, and that the judgment on all the counts should be de. bonis tes ialoris; and in deciding Secar vs. Atkinson, the case of Hawes, vs. Smith, 1 Vent. 268, and 2 Lev. 122, was examined by the. court, and declared irreconcileablc with any true principle of the law. Whitaker vs. Whitaker, 6 Johns. Rep. 112, is a more recent, authority, giving sanction to this mode of declaring. Judge Spencer, who delivered the court’s opinion, not only approves of it, but he states that tbe 'samó defence may be made, to it, as to a count charging the promise made by the testator. In this case, as in the case before us, there is but, a single count in the declaration, and it simply states that the testator was indebted to the plaintiff for money lent and advanced; and being. So thereof indebted, the defendant, as his executor, after his death, in consideration thereof, upon himself assumed to pay, &c. No promise by the testator is stated; and yet it had the approbation of that enlightened court, who declared it a valid declaiation, and that the proper judgment thereon was de bonis *170iesiatoris. These adjudications, it is perceived, go upon the grounds that this mode of declaring neither pledges the personal responsibility Of the administrator after verdict, nor deprives him of any defence he could have had, if he had been charged with an assumpsit by his intestate; and it is with these qualifications it will he received and adopted by this Court. And the debt due from the deceased, being the Consideration of the promise by the executor dr administrator, it would .be advisable at all times to state it clearly and plainly, and to be prepared to support it by competent proof; as it would be strictly to observe to insert the words, “as executor,” or “as administrator,” after the promise made by the defendant in his Representative character.
The decisions referred to upon this first objection, disposes Of the second made by the defendant to the plaintiff’s declaration;
The plaintiff was under rto necessity to aver assets in the liánds &Í the defendant, sufficient to pay his debt as administrator. It was Open to the defendant to plead plene administravitj or ány Other plea, going to show a defect of assets, as much as it Would have been in an ordinary suit against him upon the promises of his intestate; and if this defence Was within his power, and has been pretermitted by him, he is only placed in the situation of many others, who have defended themselves on wrong and mistaken grounds. The general issue pied, he has chosen to use, and by the verdict and judgment thereon, he has admitted assets to pay the debt claimed of Hm;
Ori the argument of - this cátíse, other objections were made to the record -by the defendant’s counsel, upon which we will also’ offer some short observation#. It was said that the variance betwéen the writ and declaration is fatal, and ought to revérse the judgment; and that the omission.in the latter to aver? that the defendant administered on Baton’s estate, is also a palpable error.
The writ is against the defendant in his oWn right, and the declaration charges him in his representative character, and there is certainly a seeming variance, if he is in time to take advantage of it. This, then, is the question presented to us,. *171and it will be answered by a recurrence to the authorities. We have been referred to Duvall vs. Craig, 2 Wheat. 45, where the Supreme Court of the United States say, that a variance between the writ and declaration cannot be taken advantage of on general demurrer, but must be pleaded in the early stages of the case, in abatement. But Serjeant Williams, in his excellent notes on Saunders, (1 vol. 318, note 3,) holds & different doctrine. He has brought together all the adjudications on the subject, and has reasoned himself into the belief, that no advantage whatever can, at this day, be had, either of a defective original, or of a variance between it and the declaration. Be this as it may, and it is a point we do not now mean to decide, we are clearly of opinion, that the appellant has lost the opportunity, if he had one, of availing himself of this defect in the proceedings. There is a verdict rendered in this case for the appellee; and by the statutes of amendment and Jeofails, and an act of assembly passed in 1809, ch. 153, the defect mentioned is cured. The statutes of 21 Jac. I, ch. 13, and 5 of Geo. I, ch. 13, particularly point to a variance between the writ and declaration, and by their provisions, after verdict, the judgment shall not be reversed in any court of record for such variance. . The act of 1809, ch. 153, is also explicit on this subject.
The further point in this case is readily answered. It is sufficiently averred in the declaration, that the defendant administered on Bacon’s estate. No form of words is necessary to be used in an averment of this kind. If enough is said to amount to an allegation, that the defendant administered on the estate of the deceased, it will suffice. It is here expressly said that he did so administer; and if the defendant had been so disposed, he might have pleaded ne unques administrator, and concluded to the country, which only can be done where the subject matter of the plea is a denial oí an affirmative allegation in the declaration. If, however, the declaration could be thought vicious on account of making this averment obscurely, surely it is not.such a fatal objection to it as will reverse the judgment. No case, authorising such a conclusion, has been hinted at, and certainly the court have no knowledge of such an authority.
JUDGMENT AI'FIEMED-’