The opinion of the court was delivered by
GibsoN, C. J.
The first assignment of error is without foundation in fact, the counts in the declaration being all in the same right; for though the money is averred in the second to have been received to the plaintiff’s use as administrator,the remedy is substantially his own, and the naming himself administrator, is description, if not surplusage. The rule is that where the action is on a contract with the decedent, or for a tort to the goods, before they have actually come to the executor’s possession; it can be maintained by him only on the decedent’s title, and consequently only in a representative character: but where it is on a contract, express or implied, which has sprung up, or been created since the decedent’s death; or for a tort to the goods in the executor’s possession; or for converting or detaining them, having escaped from his posses[492]*492sion; or for the price of them having been sold by him; it can be maintained only in his own right, and the naming himself executor will not change its nature. “Where,” says Lord Hale, “the foundation of an action appears of necessity to commence in the testator, the writ shall be in the detinet, as if they bring debt on a judgment given in trespass brought by them of goods taken out of the possession of their testator; contra if it were de bonis testa-toris extra custodiam suam. But if they take an obligation for a contract made to the testator; or if they sell'goods of the testator, it shall be debet and detinet because the commencement of the action was in the executors.” F. N B. 274 note. In support of this broad and comprehensive distinction between the title of the living and that of the dead, the books are full of authorities; among which it is sufficient to refer to Roll’sMr. 602., Lane, 80. 1 Mod. 62, Cro. Jac. 685. 2 Keble, 68. Latch, 220. 1 Vent. 109. Cro. Car. 219. L. Raym. 436. id. 1413. Barnes’ notes, 132. In some of these there is a want of precision which might lead a superficial observer to suppose that an executor may, in particular circumstances, sue in the one character or the other: a matter that has in modern times produced much misconception, here and in England, on the part of those who were content to draw from the abridgments, instead of the original fountains. Thus it has been said that if the executor bring the action as such, when he can bring it in his own right, he shall pay costs if he fail. The meaning will, I think, appear to be, that naming himself executor, gives him no advantage belonging to the character, where he sues substantially on his own title; and that it is the title set out, and not the addition, which is decisive of the question of character. Of this, there is no doubt in the action of debt, where the criterion is the mode in which the cause of action is laid — whether in the debet and det-inet, or the detinet only — as it is in other actions, the inherent quality of the cause of action itself.
In Reynell v. Langcastle, Cro. Car. 545, it was determined, that an executor cannot have an action in the detinet, except where it might have been maintained by the testator: and in accordance is Rolls. Mr. 602, where it is said he cannot sue in the detinet, on an obligation for the testator’s debt made to himself. In 6 Mod. 91, the same law is asserted of money received to his use after the testator’s death; and also in 10Mod. 315, of a promissory note made to him as executor. In Com. Dig. Pleader. 2. D. 1, it is said, he cannot have an action in the detinet on his own contract, though he name himself executor; as debt for rent on his own lease of land which he had as executor. In no case, perhaps, is he bound to omit the appellation of executor; but it is clear that where the cause of action is essentially his own, it operates, if at all, only as [493]*493description. Thus in Horsey v. Dimocke, 1 Vent. 119, it was ruled that if a plaintiff name himself executor, where the cause of action is in his own right, it is surplusage; and in Worfield v. Worfield, Latch. 220, the same thing is repeated in terms, and said to hare been described also in Taylor’s case in the Common Pleas. In, Jenkins v. Plombe, 6 Mod. 91, which was an action by husband and wife executrix, for money had and received to their use as executor, Lord Holt said, that if the receipt of it were after the testator’s death, and by consent of the executor, the debt would be a new creation for which the action would have to be in the plaintiff’s own right, and that naming himself executor is of no further account than to show how the original right came. It is evident, therefore, that he did not consider it as a part of the title. He further said, that where one sues as executor, “though he has judgment, yet till execution, the thing recovered is not assets in his hands; and both he and Mr. Justice Powell declared that “where the thing is assets in the executors or administrator’s hands before recovery, they shall pay costs in a non suit:” in other words, that the suit shall be in their own right for whatever had at any time been in their possession. In Nicholas v. Killegrew, 1 L. Raym. 137, where the plaintiff had declared for so much paid to his use after the testator’s death, Treby. Ch. J. said, the naming of himself executor was not to any purpose. And by him and Mr. Justice Poioell, “In all cases, where an executor or administrator sues for a debt or other thing belonging to the testator, and grounds his action on the same contract that was to the testator, he shall not pay costs if he fail in the suit; but if he grounds his action on a contract, express or by implication of law, which accrues to him after the death of the testator, there the action lies in his own name, and the naming himself executor is void. So in Wallis v. Lewis, 2 L. Raym. 1214. Lord Holt said, that the action being grounded on a promise to the executrix herself, naming her executrix was surplusage. And thus much for actions ex contractu, which it appears can be maintained in a representative character, only where the decedent was a party to the contract. As to actions for the goods, or injuries in respect of them, Lord Holt says in the samé case of Wallis v. Lewis, that if an executor bring trespass or trover for the testator’s goods, taken out of the executor’s possession, he may name himself executor if ho will, but that he need not produce the will in court, as he is sufficiently entitled on his own possession. And this distinction between the plaintiff’s own contract or possession, and the contract or possession of the decedent, will be found to reconcile all the cases in the books that may be quoted here, except Bull v. Palmer, 2 Lev. 165, and Boggs v. Bard, 2 Rawle, 104. There is, indeed, a series of recent English [494]*494decisions on this subject arranged in 1 Saund. on Pled and Ev. 496, which like many others, lessens, if it does not extinguish, our regret at the Act which prohibits the reading of British precedents subsequent in date to the declaration of our independence, as authority in our courts.
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The opinion of the court was delivered by
GibsoN, C. J.
The first assignment of error is without foundation in fact, the counts in the declaration being all in the same right; for though the money is averred in the second to have been received to the plaintiff’s use as administrator,the remedy is substantially his own, and the naming himself administrator, is description, if not surplusage. The rule is that where the action is on a contract with the decedent, or for a tort to the goods, before they have actually come to the executor’s possession; it can be maintained by him only on the decedent’s title, and consequently only in a representative character: but where it is on a contract, express or implied, which has sprung up, or been created since the decedent’s death; or for a tort to the goods in the executor’s possession; or for converting or detaining them, having escaped from his posses[492]*492sion; or for the price of them having been sold by him; it can be maintained only in his own right, and the naming himself executor will not change its nature. “Where,” says Lord Hale, “the foundation of an action appears of necessity to commence in the testator, the writ shall be in the detinet, as if they bring debt on a judgment given in trespass brought by them of goods taken out of the possession of their testator; contra if it were de bonis testa-toris extra custodiam suam. But if they take an obligation for a contract made to the testator; or if they sell'goods of the testator, it shall be debet and detinet because the commencement of the action was in the executors.” F. N B. 274 note. In support of this broad and comprehensive distinction between the title of the living and that of the dead, the books are full of authorities; among which it is sufficient to refer to Roll’sMr. 602., Lane, 80. 1 Mod. 62, Cro. Jac. 685. 2 Keble, 68. Latch, 220. 1 Vent. 109. Cro. Car. 219. L. Raym. 436. id. 1413. Barnes’ notes, 132. In some of these there is a want of precision which might lead a superficial observer to suppose that an executor may, in particular circumstances, sue in the one character or the other: a matter that has in modern times produced much misconception, here and in England, on the part of those who were content to draw from the abridgments, instead of the original fountains. Thus it has been said that if the executor bring the action as such, when he can bring it in his own right, he shall pay costs if he fail. The meaning will, I think, appear to be, that naming himself executor, gives him no advantage belonging to the character, where he sues substantially on his own title; and that it is the title set out, and not the addition, which is decisive of the question of character. Of this, there is no doubt in the action of debt, where the criterion is the mode in which the cause of action is laid — whether in the debet and det-inet, or the detinet only — as it is in other actions, the inherent quality of the cause of action itself.
In Reynell v. Langcastle, Cro. Car. 545, it was determined, that an executor cannot have an action in the detinet, except where it might have been maintained by the testator: and in accordance is Rolls. Mr. 602, where it is said he cannot sue in the detinet, on an obligation for the testator’s debt made to himself. In 6 Mod. 91, the same law is asserted of money received to his use after the testator’s death; and also in 10Mod. 315, of a promissory note made to him as executor. In Com. Dig. Pleader. 2. D. 1, it is said, he cannot have an action in the detinet on his own contract, though he name himself executor; as debt for rent on his own lease of land which he had as executor. In no case, perhaps, is he bound to omit the appellation of executor; but it is clear that where the cause of action is essentially his own, it operates, if at all, only as [493]*493description. Thus in Horsey v. Dimocke, 1 Vent. 119, it was ruled that if a plaintiff name himself executor, where the cause of action is in his own right, it is surplusage; and in Worfield v. Worfield, Latch. 220, the same thing is repeated in terms, and said to hare been described also in Taylor’s case in the Common Pleas. In, Jenkins v. Plombe, 6 Mod. 91, which was an action by husband and wife executrix, for money had and received to their use as executor, Lord Holt said, that if the receipt of it were after the testator’s death, and by consent of the executor, the debt would be a new creation for which the action would have to be in the plaintiff’s own right, and that naming himself executor is of no further account than to show how the original right came. It is evident, therefore, that he did not consider it as a part of the title. He further said, that where one sues as executor, “though he has judgment, yet till execution, the thing recovered is not assets in his hands; and both he and Mr. Justice Powell declared that “where the thing is assets in the executors or administrator’s hands before recovery, they shall pay costs in a non suit:” in other words, that the suit shall be in their own right for whatever had at any time been in their possession. In Nicholas v. Killegrew, 1 L. Raym. 137, where the plaintiff had declared for so much paid to his use after the testator’s death, Treby. Ch. J. said, the naming of himself executor was not to any purpose. And by him and Mr. Justice Poioell, “In all cases, where an executor or administrator sues for a debt or other thing belonging to the testator, and grounds his action on the same contract that was to the testator, he shall not pay costs if he fail in the suit; but if he grounds his action on a contract, express or by implication of law, which accrues to him after the death of the testator, there the action lies in his own name, and the naming himself executor is void. So in Wallis v. Lewis, 2 L. Raym. 1214. Lord Holt said, that the action being grounded on a promise to the executrix herself, naming her executrix was surplusage. And thus much for actions ex contractu, which it appears can be maintained in a representative character, only where the decedent was a party to the contract. As to actions for the goods, or injuries in respect of them, Lord Holt says in the samé case of Wallis v. Lewis, that if an executor bring trespass or trover for the testator’s goods, taken out of the executor’s possession, he may name himself executor if ho will, but that he need not produce the will in court, as he is sufficiently entitled on his own possession. And this distinction between the plaintiff’s own contract or possession, and the contract or possession of the decedent, will be found to reconcile all the cases in the books that may be quoted here, except Bull v. Palmer, 2 Lev. 165, and Boggs v. Bard, 2 Rawle, 104. There is, indeed, a series of recent English [494]*494decisions on this subject arranged in 1 Saund. on Pled and Ev. 496, which like many others, lessens, if it does not extinguish, our regret at the Act which prohibits the reading of British precedents subsequent in date to the declaration of our independence, as authority in our courts. It may be safely affirmed that the recent decisions of the English judges, have done more to unsettle the law in the United States, than have all the American decisions together. The archtype of the series alluded to, is the apocryphal case of Bull v. Palmer, just mentioned, the principle of which has been extended in Cowell v. Watts, 9 East. 405, toan action for the price of goods sold by the executor; yet if a bond had been taken for the price, it could have been recovered, according to Hosier v. Arundel, 3 Bos. & P. 7, and two cases still later, only by the obligee in his own right; and thus is the mere evidence of the debt and not the nature of it, made the criterion of the right! In fact, the difference in this respect, between a bond and a note, is expressly recognised in Partridge v. Court, 5 Price, 512. It re-' quires but another step to authorise an executor to enter into trade with the assets and contract responsibilities in a representative character. Into such miserable inconsistencies do they fall, who forsake the beaten paths of the common law.
Did the question involve no more than matter of form, the distinction would not be worth the trouble of a discussion. But it involves not only an exemption, in certain cases, from payment of costs by the plaintiff, but the joinder of jarring counts in the same declaration, where the damages to be recovered are entire. Above all, it involves the preservation of known modes of proceeding according to the course of the common law, which ought never to be changed, but to avoid some practical mischief or serious inconvenience. In actions against executors or administrators, who are answerable, conformably to a corresponding principle, in the de-tinet only on a responsibility of the decedent himself, the distinction is productive of consequences so palpable and substantial as to make it unnecessary to name them. For the applicability of the principle to the case of an executor defendant, a train of authorities was given in Morrow v. Brenizer, 2 Rawle, 185; and though the conclusion drawn in that case is said, in M'Culloch v. Sample, 1 Penn. Rep., 422, to be unsatisfactory, I presume (for there is no reason or explanation given as to the ground of the remark) that it was not intended to over-rule the authorities themselvep. I mention this case of M’Culloch v. Sample, to mark my dissent from it, that having been omitted in the report.
The remaining assignment of error- is, that the arbitrators misconceived the law in treating the promise of the’ husband as a revival of the promise of his wife; and certainly since the doctrines of revival has been exploded, the new promise alone can be made the [495]*495foundation of an action to avoid the statute of limitations; insomuch that the promise of the husband here, so far from operating on the rights of the wife after the dissolution of the coverture, would not have given a joint action against them in his lifetime. But whether the mistake of the arbitrators in this respect, be the subject of a writ of error, is the concluding inquiry raised by the argument
The statement appended to the report is certainly as much a part of it, as if it were introduced into the body of the award. What then is the nature of an award under the Act of 1705, in which are specially stated the grounds on which the arbitrators proceeded? So early as Williams v. Craig, 1 Dall. 338, and in many cases since, it was treated as a verdict; and indeed its effect is, in terms, declared 'to be such in the Act itself. To give it effect, the concurrence of the court in which the action was depending, is required; and that is to be withheld wherever the court would, for the same cause, set aside a verdict: so that its interference is regulated, as in the granting or refusing of a new trial, entirely by discretion. But a writ of error lies not to the verdict of a jury, but to the judgment which the court has rendered on it, and that will not be erroneous by reason of the verdict if the latter be unexceptionable as to form, or, in other words, if it be framed according to those rules which the law requires to be observed in the constitution of it. If the jury have mistaken the law, Without having been misdirected, the case is proper for revision, not in a superior court, but the one in which it was tried, Even an error of the court in the course of the trial was without other remedy till the Slat. Westm. 2. gave the bill of exceptions, which however can not be sealed by arbitrators. In what then was the error here? Certainly in refusing to Set aside the report. That however like a refusal to set aside a verdict, rested entirely in discretion, and is not a matter for revision here. But the arbitrators voluntarily put the ground of their decision on the record and the judgment of the court is said to be erroneous because rendered on premises that do not warrant it. We have a fashion of calling every thing a part of the record, that is committed to paper and filed in the cause. Yeti doubt whether an averment would not lie against this part of the report; and if it would, the court was not bound to proceed on the matter contained, as judicially established by record proof. It is the fact of mistake, and not the manner in which it is made appear, that is material to an exercise of judicial discretion; for whether it be disclosed by parol or the written admission of the arbitrators themselves, it is matter for the exercise of discretion still, in regard to which the court below is to be governed by its own sense of propriety. It is further argued, however, that this report is in the nature of a spe[496]*496cial verdict; and that there is error in the rendition of a judgment for the plaintiff on the facts found. But no fact is found at all, nor any thing stated but a conclusion of law and the means used to avoid it. A special law. contains a reference of the law to the court; but here the arbitrators have, for reasons set forth awarded generally and determined both the law and the fact. But' they- had no authority to find the facts specially, had they been so disposed. By the terms of the submission, they were required to dispose of the' whole controversy; and to award that certain facts exist, would be to award nothing. Neither could they delegate to the court a¡ power that had been delegated to themselves. It furnishes no objection to this conclusion, that it prevents a decision of the law by the court in the last resort. Arbitrators are judges chosen by parties who resort to this species of tribunal voluntarily and consequently not only subject to all the incidents of its jurisdiction, but with-presumptive notice of what those incidents are. Neither of' the assignments of error, therefore, is sustained.
Huston, J. dissented, Ross, J. took no part, not having heard the argument.
Judgment affirmed-