The opinion of the court was delivered by _
PeoK, J.
The fact that the plaintiff, just before he settled his final account as executor of Pierce in the probate court, obtained from the defendant a statement of the balance due the plaintiff on account of the estate of which he was executor, and had the same allowed against himself in his accounting as such executor, would seem to remove all practical difficulty of recovering that balance in-this action. The action being an action of book account, and a special report of the auditor, the record would, always show what was allowed on tlié account which accrued to the plaintiff as executor, and what upon his account in his own right, if it should ever become material to be known. But if there is a fixed rule of law, applicable to a case like the present, that forbids joining in one action demands due a plaintiff in his own right, with such as have accrued to him by contracts made by him in his capacity as executor or administrator, it must be observed.' The action is brought in the name of the plaintiff in his own right, not naming his official character as executor. The proposition of the defendant’s counsel is, that the action in this form cannot be maintained, for the reason that a part of the chattels sold by the plaintiff to the defendant, for the price of which the action is brought, was the property of the plaintiff in his own right, and the residue such as he held as executor. To sustain this proposition we are referred to Hooker, Executrix, v. Quilter, 1 Wils., 171; Ord v. Fenwick, 3 East, 104; Henshall v. Roberts et als., 5 East, 150 ; Cowell & wife, Adm’x., v. Watts, 6 East, 405. None of these cases involves the question presented ’in the case at law. In Ord v. Fenwick, and in Cowell & wife v. Watts, it was decided there was no misjoinder. In Hooker, Ex'r, v. Quilter, and in Henshall v. Roberts et als., the plaintiffs sued as executors, and the declaration contained counts upon causes of action accrued to [584]*584the testator in his life-time, and also a count or counts accrued to the plaintiff in his own right, and it was held that the plaintiff could not thus declare and recover in both rights. As to causes of action accrued to the testator or intestate in his life-time, the plaintiff must declare as executor or administrator ; but executors and administrators who contract for the sale of their testator’s or intestate’s effects, or make other agreements in their representative character, are not obliged to sue in that capacity, but may so sue, or may sue in their individual right without naming their representative character. Generally, where the money when collected will be assets to be administered, an executor or administ2’ator may sue as such ; but it is not true that in all such cases he must sue in that character. Hence the two cases last referred to, in which it is held that a count upon a cause of action on which the plaintiff must and does declare in his representative character, cannot properly be joined with a count upon a cause of action on which the plaintiff is obliged to and does declare in his own right, have but little bearing to defeat the action in the case at bar, which the plaintiff prosecutes solely in his own right, and which embraces no cause of action except such as he has a right to sue in his private character and individual right. In the class of cases mentioned, like the two last referred to, that is, Hooker, Ex’r., v. Quilter, and Henshall v. Roberts et als., to permit the joinder of the different causes of action they embraced would require different judgments in the same action, one in favor of the plaintiff as executor, and one in his favor in his own right. But in the case at bar no such necessity exists, as the plaintiff is entitled to the same judgment, that is, a judgment in the same right, upon every part of his demands without reference to the question whether he will or will not be bound to account to the estate for any portion of the sum recovered. But assuming that in such case a judgment for an entire sum, partly for chattels or effects of the testator sold by the plaintiff, and partly .for a demand due the plaintiff in his own right, would be erroneous, still the mis-joinder relied on in defence in this case does not necessarily defeat the action. Where there is a misjoinder of counts embracing incompatible causes of action apparent upon the declaration, the [585]*585declaration will be bad on demurrer; but the court will generally give the plaintiff leave to amend by striking out some of the counts and allow the action to proceed upon such counts as may legally be joined. And in an action like the present, where the declaration does not disclose the particular character of the claim, the defendant may avail himself of the objection at the hearing before the auditor, and the plaintiff would have the same right to obviate the objection by withdrawing a portion of his claims that he would have where the objection is made by demurrer. The principal reasons why an executor or administrator cannot join a promise made to his testator or intestate with one made to himself in his own individual right, are, that in recovering according to his allegations, he must recover in two distinct capacities and rights ; and' that on finding entire damages the record would not show how much was assessed in right of the testator, and how much in the plaintiff’s individual right. That the first of these reasons does not apply to this case we have already seen ;* and the other reason cannot apply, as the damages in this case are not assessed entire, but separate upon each class of items. A mis-joinder of counts and causes of action, apparent upon the declaration, with damages assessed entire, is good cause for arresting the judgment on motion after verdict, or for reversing the judgment by writ of error, as was done in Hooker v. Quilter, and in Henshall v. Roberts et als.
But if in such case the damages are assessed severally on the separate counts and causes of action, the judgment will not be arrested or reversed in toto, but the misjoinder may be cured by remitting or rejecting the damages upon some of the counts, and entering judgment upon others that can legally stand together. In Hancock et als., assignees of Lomas, a bankrupt, and also assignees of Edenson, a bankrupt, v. Haywood, 3 T. R., there being no joint commission against the two, the plaintiffs declared for goods sold and delivered by both the bankrupts; and for goods sold and delivered by each of the bankrupts, and for money paid, and money had and received by the defendant to the use of each of the bankrupts; and also for money had and received to the use of the assignees, in separate counts. Verdict for the plain[586]*586tiffs, with damage sassessed according to the demands proved upon the several counts respectively. On motion in arrest for misjoin-der, the court held that the different rights could not be joined in the same action, but allowed judgment to be entered for the plaintiffs upon the counts for the joint debts due to both the bankrupts.
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The opinion of the court was delivered by _
PeoK, J.
The fact that the plaintiff, just before he settled his final account as executor of Pierce in the probate court, obtained from the defendant a statement of the balance due the plaintiff on account of the estate of which he was executor, and had the same allowed against himself in his accounting as such executor, would seem to remove all practical difficulty of recovering that balance in-this action. The action being an action of book account, and a special report of the auditor, the record would, always show what was allowed on tlié account which accrued to the plaintiff as executor, and what upon his account in his own right, if it should ever become material to be known. But if there is a fixed rule of law, applicable to a case like the present, that forbids joining in one action demands due a plaintiff in his own right, with such as have accrued to him by contracts made by him in his capacity as executor or administrator, it must be observed.' The action is brought in the name of the plaintiff in his own right, not naming his official character as executor. The proposition of the defendant’s counsel is, that the action in this form cannot be maintained, for the reason that a part of the chattels sold by the plaintiff to the defendant, for the price of which the action is brought, was the property of the plaintiff in his own right, and the residue such as he held as executor. To sustain this proposition we are referred to Hooker, Executrix, v. Quilter, 1 Wils., 171; Ord v. Fenwick, 3 East, 104; Henshall v. Roberts et als., 5 East, 150 ; Cowell & wife, Adm’x., v. Watts, 6 East, 405. None of these cases involves the question presented ’in the case at law. In Ord v. Fenwick, and in Cowell & wife v. Watts, it was decided there was no misjoinder. In Hooker, Ex'r, v. Quilter, and in Henshall v. Roberts et als., the plaintiffs sued as executors, and the declaration contained counts upon causes of action accrued to [584]*584the testator in his life-time, and also a count or counts accrued to the plaintiff in his own right, and it was held that the plaintiff could not thus declare and recover in both rights. As to causes of action accrued to the testator or intestate in his life-time, the plaintiff must declare as executor or administrator ; but executors and administrators who contract for the sale of their testator’s or intestate’s effects, or make other agreements in their representative character, are not obliged to sue in that capacity, but may so sue, or may sue in their individual right without naming their representative character. Generally, where the money when collected will be assets to be administered, an executor or administ2’ator may sue as such ; but it is not true that in all such cases he must sue in that character. Hence the two cases last referred to, in which it is held that a count upon a cause of action on which the plaintiff must and does declare in his representative character, cannot properly be joined with a count upon a cause of action on which the plaintiff is obliged to and does declare in his own right, have but little bearing to defeat the action in the case at bar, which the plaintiff prosecutes solely in his own right, and which embraces no cause of action except such as he has a right to sue in his private character and individual right. In the class of cases mentioned, like the two last referred to, that is, Hooker, Ex’r., v. Quilter, and Henshall v. Roberts et als., to permit the joinder of the different causes of action they embraced would require different judgments in the same action, one in favor of the plaintiff as executor, and one in his favor in his own right. But in the case at bar no such necessity exists, as the plaintiff is entitled to the same judgment, that is, a judgment in the same right, upon every part of his demands without reference to the question whether he will or will not be bound to account to the estate for any portion of the sum recovered. But assuming that in such case a judgment for an entire sum, partly for chattels or effects of the testator sold by the plaintiff, and partly .for a demand due the plaintiff in his own right, would be erroneous, still the mis-joinder relied on in defence in this case does not necessarily defeat the action. Where there is a misjoinder of counts embracing incompatible causes of action apparent upon the declaration, the [585]*585declaration will be bad on demurrer; but the court will generally give the plaintiff leave to amend by striking out some of the counts and allow the action to proceed upon such counts as may legally be joined. And in an action like the present, where the declaration does not disclose the particular character of the claim, the defendant may avail himself of the objection at the hearing before the auditor, and the plaintiff would have the same right to obviate the objection by withdrawing a portion of his claims that he would have where the objection is made by demurrer. The principal reasons why an executor or administrator cannot join a promise made to his testator or intestate with one made to himself in his own individual right, are, that in recovering according to his allegations, he must recover in two distinct capacities and rights ; and' that on finding entire damages the record would not show how much was assessed in right of the testator, and how much in the plaintiff’s individual right. That the first of these reasons does not apply to this case we have already seen ;* and the other reason cannot apply, as the damages in this case are not assessed entire, but separate upon each class of items. A mis-joinder of counts and causes of action, apparent upon the declaration, with damages assessed entire, is good cause for arresting the judgment on motion after verdict, or for reversing the judgment by writ of error, as was done in Hooker v. Quilter, and in Henshall v. Roberts et als.
But if in such case the damages are assessed severally on the separate counts and causes of action, the judgment will not be arrested or reversed in toto, but the misjoinder may be cured by remitting or rejecting the damages upon some of the counts, and entering judgment upon others that can legally stand together. In Hancock et als., assignees of Lomas, a bankrupt, and also assignees of Edenson, a bankrupt, v. Haywood, 3 T. R., there being no joint commission against the two, the plaintiffs declared for goods sold and delivered by both the bankrupts; and for goods sold and delivered by each of the bankrupts, and for money paid, and money had and received by the defendant to the use of each of the bankrupts; and also for money had and received to the use of the assignees, in separate counts. Verdict for the plain[586]*586tiffs, with damage sassessed according to the demands proved upon the several counts respectively. On motion in arrest for misjoin-der, the court held that the different rights could not be joined in the same action, but allowed judgment to be entered for the plaintiffs upon the counts for the joint debts due to both the bankrupts. Upon the same principle, assuming that the two classes of items cannot both be recovered in this action, there would be no legal objection to a recovery at least for the items that grew out of the testator’s estate, even if the auditor had found a balance also due to the plaintiff on the other class of items; and beyond this, by the report of the auditor and the judgment of the county court, the plaintiff has not recovered. If there is a misjoinder, another principle of pleading applicable to this case is, that where a declaration contains two sets of counts, the one set incompatible with the other, and verdict for plaintiff on the counts that are well joined with each other, and verdict for defendant on the other counts, the misjoinder is cured by the verdict, and the plaintiff is entitled to judgment on the counts on which he obtained a verdict. In Knightly v. Birch, 2 M. & S., 533, in which counts in tort were joined with counts in assumpsit, there was a verdict for the plaintiff on the counts in tort, and for the defendant on the counts in assumpsit. On motion in arrest for misjoinder, the court rendered judgment for the plaintiff on the counts on which he prevailed before the jury, overruling Bage v. Bromwell, 3 Lev., 99, to the contrary ; Lord Ellenborough, Ch. J., saying in relation to that case that it “ had had its day and that it was time it should cease." So in this case, the auditor having found nothing due except upon that portion of the claim growing out of the testator’s estate, the misjoinder, if any, is cured, and the plaintiff is entitled to judgment according to the finding of the auditor for the other portion of the claim. Again, upon the facts reported, the plaintiff, three years before the commencement of this suit, having closed the settlement of the estate except a pew in a meeting-house not yet sold, and having at the same time, in settling his account as executor, accounted for the whole of this claim, which grew out of the testator’s estate, by charging himself with it, it does not appear that it will be assets to -be administered [587]*587when collected, but on the contrary, it not appearing that the plaintiff is indebted to the estate, the presumption would rather be that the plaintiff has fully accounted to the estate for this claim, and that he is entitled to the proceeds of the judgment in his own right. In this respect the facts in this case are stronger in favor of the right of the plaintiff to recover than in Aihen v. Bridgman, 37 Vt., 249, very similar to this in other respects, in which the plaintiff was allowed to recover.
Judgment affirmed.