Johnson v. Gaines

8 Ala. 791

• Court: Supreme Court of Alabama
• Decided: June 15, 1845
• Status: Published

Opinion

OílMOND, J.

It is probable this action was commenced, upon the mistaken supposition, that the estate was responsible for debts created by the executor, and that it was the intention to sue the executor as such. Be this as it may, it is very clear the declaration shows, that no action can be maintained against the defendant in his representative character, as the debt was created by him, since his qualification as executor, and although the work may have been done, or the money advanced for the benefit of the estate, he represents, it as a charge against him individually. This being ascertained, the naming him as executor in the writ, and declaration, as it neither adds to, or diminishes his individual responsibility, is matter of form and not substance, as by reference to the claim asserted against him, it is evident he is not sued as executor, though described as such. This is then merely descriptio personae, which, according to all the authorities, does not vitiate.

The demurrer to the declaration was improperly sustained, and the judgment must be reversed, and the cause remanded.