Mr. Chief Justice Smith
delivered the opinion of the court.
This was an action of debt, brought in the circuit court of La Fayette county, upon a decree of the supreme court of errors and appeals of the State of Tennessee, against the plaintiff in error as the. administrator of William R. Cox, deceased.
The defendants filed, first, a plea of nul tiel record, to which there was a replication; second, a plea of the statute of limitations, in which it was averred that the said action was not commenced within two years next after the 24th of February, 1844. To this plea the plaintiffs replied, that the defendant was appointed administrator of the estate of the said William R. Cox, and qualified as such on the 5th day of October, 1845, and that the said suit was commenced on the 7th day of October, 1846, within two years and nine months after said 24th day of February, 1844. The defendant demurred to the replication; the demurrer was overruled, and he declined to plead over. Four other pleas were filed, the last of which was withdrawn by the defendant at the trial. The remaining pleas were, upon demurrer, adjudged insufficient. The defendant declining to plead further, and the issue upon the plea of nul tiel record being decided in favor of the plaintiffs, judgment was accordingly rendered for them. The judgment offered in evidence under the plea of nul tiel record, was by bill of exceptions made a part of the record.
1. The decision overruling the demurrer to plaintiffs’ replication to the defendant’s second plea was correct. The statute, Hutch. Dig. 832, § 14, under the provisions of which the plea was filed, commenced to operate on the 24th of February, 1844. Letters of administration were granted to defendant on the estate of the decedent on the 8th day of October, 1845. Two [478]*478years had not, therefore, elapsed from the passage of the act before the grant of letters. In regard to the general statute of limitations, it is the settled doctrine of this court that the grant of letters of administration will suspend its operation; and that the nine months, during which the executor or administrator is protected from suit, is not to be computed as a part of the time required to bar a suit for any debt or demand against the testator’s or intestate’s estate. The disability to sue in such cases arises from a positive provision of the law. And for that reason, it is held to be reasonable and just, that the time during which the disability continues should be excluded from the computation. This, reason exists, with at least equal force to the case at bar, as there is nothing in the nature of the subject, nor, in the terms of the statute under consideration, which would authorize a different construction. On the contrary, the very limited period allowed, in which suits upon judgments rendered before its enactment in courts without this State might be brought, forcibly suggests the propriety of adopting the same construction which is applied to the general statute of limitations. Applying the rule, then, which excludes the nine months from the computation to this statute, this suit, which was instituted on the 6th of October, 1846, was brought within the time limited by the act.
2. The matter alleged in the defendant’s pleas to which there was a demurrer was not a bar to the action. In these pleas it was in substance alleged, that the decree on which the action was based was rendered in the chancery court of Tennessee, in a suit prosecuted therein against the defendant’s intestate, in his representative character as the administrator of John Boyd, Jr., decedent, and that the object of said suit was to charge the intestate as such administrator, and not in his personal character. It is also alleged, that the intestate had notice no otherwise than as such administrator, of the pendency of said suit.
If the suit were, as alleged, instituted against the defendant’s intestate as administrator, and the decree which in fact was rendered bound him personally for the payment of the debt, it might possibly have been erroneous. It was certainly not necessarily void. And if not void, it is clear that it could not [479]*479be collaterally attacked for error. But it is not alleged that the decree which was rendered, was against the intestate in either his personal character or representative capacity. ^ An averment to this effect was essential to the validity of the defence attempted to be set up. For without such an averment upon the trial of the issue, it could not have been shown that the decree was rendered without notice, or that it bound the intestate in any capacity, either personally or as administrator. The demurrer was therefore properly sustained.
3. It is insisted that the court erred in overruling the plea of nul tiel record; because, as it is contended, there was a material variance between the decree produced on the trial of the issue, and that which was described in the declaration. The variance alleged to exist, consists in this. 1st. The decree upon which the action is founded is described in the declaration as a decree rendered in the supreme court of errors and appeals of the State of Tennessee against defendant’s intestate in his personal character, whereas the decree which was offered at the trial and submitted to the inspection of the court was a decree of said court, against the intestate, as the administrator of John Boyd, Jr., the intestate; 2d, that the said decree was not, as alleged, a decree of the supreme court of Tennessee; but in fact that it is a decree of the chancery court of said State.
1. The decree, as it appears in the record, submitted to the court, is unquestionably a judgment against the intestate in his individual character. It is in the following words, to wit: “ And it appearing to the satisfaction of the court, that the negroes mentioned in the bill have been removed out of this State, it is also decreed that the complainants also recover of the defendant, 'William R. Cox, the sum of $1,758, being the complainants’ share of the value of the negroes, &c.” But it is contended that this decree is to be regarded as a judgment against Cox in his representative character; for as it is insisted, the record of the proceedings in which it was pronounced shows cjearly that he was neither sued, nor chargeable personally; and that the decree was entered in the form in which it stands on the record by a clerical mistake.
If the state of facts be such, as is assumed in the argument, [480]*480the decree was erroneous. But, have we the right to regard it in the light contended for ? Have we the authority to correct the error by amending the- decree so as to make it conform to the pleadings and proofs in the cause, and thereby produce the variance insisted on 1 It cannot be doubted that we have no such power. We are compelled to regard it, as it purports to be, and in no other light than as a decree charging the intestate personally.
The authorities cited by counsel have very little relevancy to the question. In the case of Haggett v. Montgomery et al., 6 How. 93, the case most relied on, the amendment of the judgment, was made in the circuit court, in which the judgment was rendered. From the whole record which was on file in the court, it was manifest that the error was the result of a clerical mistake. The error committed was in entering the judgment against the defendant generally, and not against him as administrator.
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Mr. Chief Justice Smith
delivered the opinion of the court.
This was an action of debt, brought in the circuit court of La Fayette county, upon a decree of the supreme court of errors and appeals of the State of Tennessee, against the plaintiff in error as the. administrator of William R. Cox, deceased.
The defendants filed, first, a plea of nul tiel record, to which there was a replication; second, a plea of the statute of limitations, in which it was averred that the said action was not commenced within two years next after the 24th of February, 1844. To this plea the plaintiffs replied, that the defendant was appointed administrator of the estate of the said William R. Cox, and qualified as such on the 5th day of October, 1845, and that the said suit was commenced on the 7th day of October, 1846, within two years and nine months after said 24th day of February, 1844. The defendant demurred to the replication; the demurrer was overruled, and he declined to plead over. Four other pleas were filed, the last of which was withdrawn by the defendant at the trial. The remaining pleas were, upon demurrer, adjudged insufficient. The defendant declining to plead further, and the issue upon the plea of nul tiel record being decided in favor of the plaintiffs, judgment was accordingly rendered for them. The judgment offered in evidence under the plea of nul tiel record, was by bill of exceptions made a part of the record.
1. The decision overruling the demurrer to plaintiffs’ replication to the defendant’s second plea was correct. The statute, Hutch. Dig. 832, § 14, under the provisions of which the plea was filed, commenced to operate on the 24th of February, 1844. Letters of administration were granted to defendant on the estate of the decedent on the 8th day of October, 1845. Two [478]*478years had not, therefore, elapsed from the passage of the act before the grant of letters. In regard to the general statute of limitations, it is the settled doctrine of this court that the grant of letters of administration will suspend its operation; and that the nine months, during which the executor or administrator is protected from suit, is not to be computed as a part of the time required to bar a suit for any debt or demand against the testator’s or intestate’s estate. The disability to sue in such cases arises from a positive provision of the law. And for that reason, it is held to be reasonable and just, that the time during which the disability continues should be excluded from the computation. This, reason exists, with at least equal force to the case at bar, as there is nothing in the nature of the subject, nor, in the terms of the statute under consideration, which would authorize a different construction. On the contrary, the very limited period allowed, in which suits upon judgments rendered before its enactment in courts without this State might be brought, forcibly suggests the propriety of adopting the same construction which is applied to the general statute of limitations. Applying the rule, then, which excludes the nine months from the computation to this statute, this suit, which was instituted on the 6th of October, 1846, was brought within the time limited by the act.
2. The matter alleged in the defendant’s pleas to which there was a demurrer was not a bar to the action. In these pleas it was in substance alleged, that the decree on which the action was based was rendered in the chancery court of Tennessee, in a suit prosecuted therein against the defendant’s intestate, in his representative character as the administrator of John Boyd, Jr., decedent, and that the object of said suit was to charge the intestate as such administrator, and not in his personal character. It is also alleged, that the intestate had notice no otherwise than as such administrator, of the pendency of said suit.
If the suit were, as alleged, instituted against the defendant’s intestate as administrator, and the decree which in fact was rendered bound him personally for the payment of the debt, it might possibly have been erroneous. It was certainly not necessarily void. And if not void, it is clear that it could not [479]*479be collaterally attacked for error. But it is not alleged that the decree which was rendered, was against the intestate in either his personal character or representative capacity. ^ An averment to this effect was essential to the validity of the defence attempted to be set up. For without such an averment upon the trial of the issue, it could not have been shown that the decree was rendered without notice, or that it bound the intestate in any capacity, either personally or as administrator. The demurrer was therefore properly sustained.
3. It is insisted that the court erred in overruling the plea of nul tiel record; because, as it is contended, there was a material variance between the decree produced on the trial of the issue, and that which was described in the declaration. The variance alleged to exist, consists in this. 1st. The decree upon which the action is founded is described in the declaration as a decree rendered in the supreme court of errors and appeals of the State of Tennessee against defendant’s intestate in his personal character, whereas the decree which was offered at the trial and submitted to the inspection of the court was a decree of said court, against the intestate, as the administrator of John Boyd, Jr., the intestate; 2d, that the said decree was not, as alleged, a decree of the supreme court of Tennessee; but in fact that it is a decree of the chancery court of said State.
1. The decree, as it appears in the record, submitted to the court, is unquestionably a judgment against the intestate in his individual character. It is in the following words, to wit: “ And it appearing to the satisfaction of the court, that the negroes mentioned in the bill have been removed out of this State, it is also decreed that the complainants also recover of the defendant, 'William R. Cox, the sum of $1,758, being the complainants’ share of the value of the negroes, &c.” But it is contended that this decree is to be regarded as a judgment against Cox in his representative character; for as it is insisted, the record of the proceedings in which it was pronounced shows cjearly that he was neither sued, nor chargeable personally; and that the decree was entered in the form in which it stands on the record by a clerical mistake.
If the state of facts be such, as is assumed in the argument, [480]*480the decree was erroneous. But, have we the right to regard it in the light contended for ? Have we the authority to correct the error by amending the- decree so as to make it conform to the pleadings and proofs in the cause, and thereby produce the variance insisted on 1 It cannot be doubted that we have no such power. We are compelled to regard it, as it purports to be, and in no other light than as a decree charging the intestate personally.
The authorities cited by counsel have very little relevancy to the question. In the case of Haggett v. Montgomery et al., 6 How. 93, the case most relied on, the amendment of the judgment, was made in the circuit court, in which the judgment was rendered. From the whole record which was on file in the court, it was manifest that the error was the result of a clerical mistake. The error committed was in entering the judgment against the defendant generally, and not against him as administrator. According to the authority of some cases, the correction might have been made even after the record was removed into the appellate court by writ of error. Short v. Coffin, 5 Burr. 2. But it has been settled in this court, that a judgment entered against an executor generally, or de bonis propriis, is erroneous, and may be reversed. Breckenridge v. Mellen, 1 How. 273; Hill v. Robison, 2 S. & M. 541; 4 How. 113.
But we do not concur with counsel in the assumption that the suit in which the decree was rendered, was instituted for the purpose of charging the defendant’s intestate in his representative capacity, or that the judgment was erroneously entered against him in his personal character. The. bill was filed against the widow and heir of John Boyd, Jr., deceased, and against the intestate, who had administered on his estate for the recovery of real and personal property alleged to be held by them in trust for the complainants. The trust was established and a decree was rendered for the trust property held by the respondents. The slaves, which constituted a part of the property, appear by a recital in the decree to have been removed beyond the jurisdiction of the State. We must presume that the administrator was responsible for them. If so, a decree for their value was properly rendered against him. And [481]*481it is manifest that no decree, except one which bound him personally, should have been pronounced.
2. We come to the last objection urged by the plaintiff in error. That is, that the decree was erroneously described as a judgment of the supreme court of Tennessee.
As we have above seen, a bill was filed in the chancery court against the defendant’s intestate, with others. A final decree having been there rendered against the respondents, they removed the cause, by writ of error, into the supreme court, in which the decree of the chancery court was affirmed. The entry of the judgment in that court was made in the following words, to wit: “ This cause coming on to be heard in the honorable the supreme court of Tennessee this day, upon the reading of the record and argument of counsel, and it appearing satisfactory to the court that in the record and proceedings had in this cause there is no error, it is therefore ordered, adjudged, and decreed that the decree in the chancery court be in all things affirmed, &c.” This, it is presumed, is the form adopted for entering the judgment or decree in that court, where it is simply a judgment or decree of affirmance. The decree of the supreme court, affirming the decree of the chancery court, had reference necessarily to that decree which was contained in the record; and by the act of affirmance it was made in effect the decree of the supreme court. We think, therefore, the decree was correctly described as a decree of the supreme court of Tennessee.
Judgment affirmed.