Mr. Justice Raney
delivered the opinion of the court:
I. The first assignment of error is in the ruling and order of the Circuit Court sustaining the demurrer to the pleas of the defendant, James Y. Wilson.
It is contended on behalf of the plaintiff’ in error that looking at the several writings, the bond and the mortgage, and the order of the Circuit Court authorizing their execution, including the petition upon which the order is founded, there is no personal liability upon his part; that a contract is to be expounded and carried into effect according to the intention of the parties, and this intention is to be collected from the whole agreement, whether it be contained in only one or in several papers; that there was no intention that he should he bound.
It is well settled as a general rule that where an executor, administrator or trustee, who is sui juris, signs a promissory note, bond or other contract, as executor, administrator or trustee, he is personally liable upon it. Robinson vs. Springfield Company, 21 Fla.; Daniel on Nego. Instruments, §§261-2, 271. “ A trustee, merely as such, is, in general, only sueable in equity. But if he chooses to bind himself merely by a personal covenant, he is liable at law for a breach thereof in the same manner as any other person, although he describes himself as covenanting as trustee; for, in such a case, the covenant binds him personally, and the addition of the words as trustee is but matter of description to show the character in which he acts for his own protection, and in no degree affects the rights or remedies of the other party. The authorities are very elaborate on this subject. An agent or executor who covenants in his own name, and yet describes himself as agent or executor, is personally liable for the obvious rea[136]*136son that the one has no principal to bind, and the other substitutes himself for his principal.” DuVall vs. Craig, 2 Wh., 56. In Sims vs. Stillwell, 3 How., (Miss.,) 183, an agreement was as follows: “ I, Everett Stillwell, executor, admit and acknowledge that the bill of John Miller for lumber furnished on Wm. H. Sims’ order since the death of Lewis Hord, amounting to about seven or eight hundred dollars, is just, and that I will pay the same, said lumber having been furnished for carrying on a building which I, as executor of ITord’s estate, am having completed. March 22, 1837. Everett Stillwell, executor.” “In reference to this contract,” says Sharkey, C. J., speaking for the court, “ there certainly can be no pretence that it makes the defendant liable as executor only. It is dearly an undertaking which makes him individually responsible. The court, therefore, erred in charging the jury that if they believed the defendant intended to bind himself only as executor of Hord they must find for the defendant.” In Sumner vs. Williams, 8 Mass., 162, the administrators of an insolvent estate, under a license of court to sell the real estate of their intestate for the payment of his debts, sold an equity of redemption of which their intestate was supposed to die seised, (the grantees at the same time purchasing an assignment of the mortgage) and in their deed the administrators covenant in their said capacity of administrators that they as administrators are lawfully seised of the premises ; that they are clear of all incumbi’ances except the mortgage ; that they have in their said capacity good right to sell, &c., and that as administrators they will warrant and defend the same to the grantees and their heirs, &c., against the lawful claims of all persons; and they sign and seal the deed as administrators. In an action against them on the covenant to warrant, &c., after eviction by paramount title,, it was held that they were answerable personally on their [137]*137covenant. It was contended for the administrators that the exposition of their character and capacity in the contract itself, and the subject matter of it, necessarily require a construction which discharges the defendants from any liability upon the failure of the title which they undertook to convey; and that the covenants of the defendants must have been intended by them and accepted by the grantees in the deed in question either as covenants void in their operation or as covenants which respected the acts of the grantors only. “In the case at bar the plaintiff,” says Sewall, J., “ relies upon an express warranty of the title or interest purchased ; and this covenant forms an important part of the contract contained in the deed of the defendants. An administrator acting under a license and an authority to sell the real estate of his intestate is not required by any duty of his office or trust to enter into a personal covenant for the absolute perfection of the title which he undertakes to convey, or for the validity of the conveyance beyond his own acts. It will be admitted, however, that he is at liberty to do it, if he chooses thus to excite the confidence of purchasers and to enlarge the proceeds of the sale; and that he may be competent to engage his own credit collaterally in the conveyance * * * in so much as that a contract to this effect is not uulawful or void in itself for any absurdity or inconsistency.” * * * * “ If the deed contains express covenants of the administrator as in the case at bar he is certainly not to be holden beyond the legal import and effect of such covenants. If these are doubtfully expressed and the words admit of a construction which restrains the covenant to his own acts, this may be reasonably conjectured to be the true construction ; for this is the most natural and therefore the most probable intention of the parties in the actual circumstances of the case. The rule then applies that where sentences are ambiguous or capable of sev[138]*138eral significations, conjectures are necessarily resorted to, to determine the meaning of the parties ; and conjectures for this purpose may be drawn from the subject matter and the circumstances of the contract. This rule is applicable, however, only where the sentences in which the parties have expressed themselves, either from the terms or their arrangement, leave their intentions doubtful. For otherwise the most usual and natural import is to be given to the instrument ; and to resort to rules of construction would be to substitute probable conjectures for evidence that is direct and unalterable.” See also m. p. 208, 211. “ The objection to the liability of the defendants, which strikes the mind with most force” says Judge Parker, “ is that they will thus be subjected to the payment of the damages for defect of title contrary to their intention when they entered inlo the contract, and when they were to derive no personal benefit from the execution of their trust as administrators by the sale of the estate. * * * It is true that the most just way of ascertaining the legal effect of a contract is to know the intention of the parties to it. * * * "What did the parties mean, is the great question ? But, as I apprehend this beneficial rule, it is applicable to clauses and provisions in the instrument, the words of which are of a doubtful import, and seldom is called in aid to settle the question of the liability of any party to the instrument, when its meaning has been ascertained. An attorney who contracts for his principal may mistake his authority and make a contract beyond the letter of his power. He certainly does not mean to charge himself; and yet he would be chargeable if any damage arose from the non-performance of his contract.” 208, 210.
In Whiting vs. Dewey, 15 Pick., 428, (A. D. 1834,) where the grantors, who were testamentary guardians, covenanted [139]*139in their capacity of guardians, “ that Benedict Dewey, deceased, died seised of the premises ; secondly, that they, in their capacity aforesaid, in right of the said minor, were lawfully seised of the premises.”
In an action on the covenants against the surviving guardian, it was held that they were liable personally on these covenants. “ This question,” says the opinion, “was fully considered in Sumner vs. Williams, 8 Mass., 162, (A. D. 1811,) which in principle cannot be distinguished from the case at bar; and although the court was divided in opinion in that ease, the soundness of the decision by a majority of the court has never since been questioned; and it is supported by a current of authorities and by well established principles. "When parties contract in autre droit,, and fail to bind their principals, they are to be held to be personally responsible. This is the general rule, and is perfectly reasonable and just. The exception is where the contracting party is a public agent, and contracts on the public account. This exception is founded on public policy and therefore emphatically proves the rule ; for if the rule had not been well established the exception would have been placed on other grounds than public policy.” In Mitchell vs. Hazen, 4 Conn., 495, the grantor of the land was the administrator of A., and acted under an order of sale, and it was held that a general power of sale for the payment of debts given by the probate court to an administrator authorizes him to execute such an instrument only as is legally proper for the conveyance of the estate to be sold ; and that whenever a person undertakes to stipulate without authority, or beyond his authority, he is answerable personally for the non-performance of the contract; and that if a person choose to bind himself by a personal contract, he is legally liable for a breach of it, although he describe himself as covenanting as trustee, agent, executor or [140]*140administrator, and that therefore where a grantor in a deed purporting to convey the estate of an intestate described himself as “ administrator of the estate ” of the intestate, stated his power to sell as derived from the order of the court of probate for that purpose, and signed the deed with the addition of “ administrator ” to his name, in which deed he covenanted as follows: ‘T, the said grantor, do for myself, my heirs, executors and administrators, covenant with the said parties; that I am well seised,” &c., he by such covenant bound himself personally. In Beldon vs. Seymour, 8 Conn., 19, the grantors, administrators acting under an order from the probate court to sell for the’ payment of debts, so described themselves in the deed and in such deed as administrators aforesaid and by virtue of the powers aforesaid for themselves and for the heirs of a (the intestate) covenanted that they had good right to convey the premises, which deed was signed by themselves without any addition to their names, it was held that this was a personal covenant which bound the grantors and them only. In Childs vs. Monius, 6 E. C. L. Repts., 228, [459,] the makers of the promissory note promised as executors of the will of Thomas Taylor to pay, and they were held to be bound personally; Dallas, C. J., of the Common Pleas, saying in his opinion: “If they meant to limit their liability why did they not add to the words as executors the words, out of the estate of Thomas Taylor. In Mason vs. Caldwell, 5 Gilman, 196, a guardian made a bond for title in which she covenanted “ for herself and her successor.” She professed in the bond to act in pursuance of and according to an act of the Legislature of Illinois. It was held to be personally binding on her, though void as to the ward. “It makes no difference,” says the court, “ that Mrs. Mason was professing to act as guardian under a legal appointment. If an administrator or guardian, in his representative capacity, [141]*141makes a contract or covenant which he has no right to make, and which is not biuding on the estate or ward, he bound personally to make it good.” Ibid, 206, 207 ; Burlingame vs. Brewster, 79 Ill., 515. The promissory note was sigued as trustee “ for the First Universalist Society,”' and these words were torn from the note by appellee before presenting it to appellant for signature. The opinion of the court is that while the words torn from the note would show that it was as trustees the promissors were induced to. make it, they do not show any attempt by words usually deemed apt for that purpose to bind the corporation, and that the makers were personally bound. See also Hayes vs. Matthews, 63 Ind., 412. In Austin vs. Munro, 47 N. Y., 360, it was held that a contract made by executors in form as such in consideration of services to be rendered in vindicating and asserting their claims to property in their representative capacity, and for the benefit of the estate they represent, does not bind the estate or create any charge upon the assets in the hands of the executors, and the doctrine of the opinion is that such a contract, if valid in other respects, though it does not bind the estate,binds the executors personally, and in Davis vs. French, 20 Maine, 23, the Supreme Court, citing Sumner vs. Williams, remark, but the executor or administrator cannot create a debt against the deceased ; and it is immaterial how clearly the intent to do. so may be expressed, for having no power to bind the estate, he only binds himself by such a contract; and in McEldey vs. McKenzie, 2 Porter, 33, it is held that although an executor or administrator may contract for necessary matters relating to an estate, he does so on his personal responsibility, and the action to recover on such contract at law must be against him individually.
Applying the principles of the above authorities, we are unable to perceive why the plaintiff in error is not bound [142]*142personally by the instrument sued on. In it is a clear and unqualified covenant on his part to pay.. There is no ambiguity or doubt about it. Its language is as plain as it can be, and no rule of construction can be invoked to change its meaning, nor can parol testimony be used to change its terms. But it is said that there was no such intention. The intention which the courts are to enforce is that which the language used, and the words of the contract as applied to the subject matter, whether in one or several instruments, indicates. Extending our view to the mortgage we find nothing in it to destroy the effect of the bond sued on. It refers, it is true, to the injunction against Devereux, the petitioner, and the order authorizing the petitioners to execute their note and secure the same by the mortgage, and that the said note and mortgage shall have the same force and effect to all intents and purposes as though Converse P. Devereux, as executor of said last will had joined therein, yet it does not purport, to be executed solely by virtue of such order, hut as well by the authority given them by said last will and testament. In it we find, after the condition, a distinct covenant, by which the parties of thefirstpart“covenant and agree for themselves and their successors to pay unto the said Phcebe Fridenberg, her heirs, executors, administrator’s and assigns the said sum of money according to the tenor and effect of the said promissory note, and all costs and solicitors’ fees that may be incurred by her or them in collecting the same by foreclosure or otherwise, and to keep said buildings insured as aforesaid against loss or damage by fire, and to pay all said taxes and assessments,” &c. Assuming that the order gave legal power to mortgage the land no such covenant as this was necessary to the mortgage. Admitting that the word “ successors ” shows an intent to bind those who should come after them in the [143]*143same trust relation, the meaning as to themselves in the light of all authority, is that the language’binds them personally. We can give it no other legal effect, when considered in connection with the instrument sued on, than as evincing an intent to create a personal liability. They were at liberty to so covenant, and when made it must in the eyes of the law be held to have been extended to the lender as one of her reliances for payment. There is nothing stated in the mortgage qualifying such effect, nor is there anything else in the mortgage which this covenant is necessary to, and which would be ineffectual without it. We must ignore it entirely before we get rid of the effect indicated. This we have no right to do. It is a part of the contract, made and accepted by the parties, and to ignore it would be no less unauthorized than to interpolate into the contract at its foot a final statement that nothing in this covenant was to have any effect whatever to bind personally any party to the contract. If the intent of the parties had been that it should have no such effect, why was it put in, or if put in for any other purpose than that which it conveys, why was it not limited by proper words ? In Duval vs. Craig, supra, there was a covenant by the grantors against former gifts, grants, incumbrances, &c., made by them, and then a covenant to warrant generally, followed by a statement that if the land or any part thereof should be at any time taken by a prior legal claim the grantors should make good the same by other lands, and it was held that the qualifying statement did not apply to the first covenant. The supposition that the parties might have meant to apply the same indemnity to both covenants was regarded as reasonable, but it was held that something more than thereasonableness of such a supposition must exist; that the covenants stood as distinct in the deed and there is no incongruity or inconsistency in considering [144]*144them as independent of each other; and that a case ought to be very strong which would authorize a court to create by implication a restriction which the order of the language does not necessarily import or justify, and ought to be one in which no judicial doubt could exist of the real intention of the parties to create such a restriction. The language in the two instruments imports a personal liability, and we find nothing restricting its legal effect.
Looking at the petition and order, we recognize that the former was filed and the latter made in the cause wherein the petitioner had obtained the injunction against Devereux, and that the prayer is for an order authorizing them in their representative capacity to borrow the money and to execute the note, and the mortgage on the lots to secure the payment thereof, and that the order authorizes Mrs. Wilson, “ as executrix,” and “ James Y. Wilson, her husband,” to “borrow” and “execute their note therefor, and secure the payment of said promissory note by a mortgage executed by them on ” the lots, and provides that “ the note and mortgage so executed by them shall have the same force and effect to all intents and purposes as though Converse P. Devereux, as executor, who has been enjoined by this court, for the time being, from attempting to administer said estate, had joined therein ; ” and we do not forget that there is in the petition a statement that the defendant in error is willing to lend the $6,000, with interest at the rate stated in the petition “ to be secured by mortgage on ” the lots described, and that because of “ Devereux having been enjoined and cannot join in the execution of the notes and mortgage to secure the loan, and this court having jurisdiction of the said estate, 3-our petitioners are advised it is expedient and proper for them to apply for the order to execute said note and mortgage for and on behalf of said estate of C. Parkhurst.” Mrs. Eridenberg was no [145]*145party to this original suit, or to the petition and order ; nor is there in the petition or order anything which precluded the petitioners from entering into a personal covenant to pay the money if they should desire. The purpose of the petition was to get authority to bind the estate, and assuming that the order, if of any validity, makes the note and mortgage of any other effect than they would be without it had Devereux not been enjoined, and had joined in their execution, it cannot be assumed or held that the effect or meaning of the order was that the petitioners should, in carrying it out, execute any paper purporting to bind themselves personally. It was not the purpose, or intent, or effect of any of their proceedings to confer any power to bind themselves personally or to authorize them to execute any paper purporting to do it, and the order cannot be used as either authorizing or limiting the effect of any such paper. Had they executed a paper binding themselves personally for a loan of $6,000, at 12 percent, per annum for two years, the terms stated in the order, they could not have pleaded the order in bar of a recovery on their personal contract. Instead of merely pledging the estate under the order they have unqualifiedly pledged themselves, and two instruments under seal give solemn evidence of it. Admitting moreover that at the time the order was obtained it was the purpose of the petitioners to bind only the estate and not themselves, it is a fact, as stated above, that Mrs. Eridenberg was not a party thereto. Though she knew of the order and believed it specified the rate of interest and other terms stated in the mortgage, she has not lent her money simply upon the security of the liability of the estate as contemplated by such order ; this is plain from the note and mortgage, which are the repository of the terms of the contract between her and the pe~ [146]*146titioners, and which show that she in fact lent her money not solely on the security of the estate of Parkhurst.
It is very evident, however, judging by the record before us, that the order never was of any validity as to the estate of Parkhurst. Neither of the lots are shown to be a part of the fund used by the testator in the business he was conducting at his death, in Jacksonville and Palatka, or to have been purchased with money belonging to such business, and the children were not parties to the said petition or order. The consequence is that, in so far as they acted or pretended to act, either under the will or under the order, they acted without lawful authority to bind the estate of Parkhurst. Wilson vs. Fridenberg, 20 Fla., 359; 21 Fla., 390, 391. Acting thus without authority their action is, in the light of the above authorities, and all others we have seen, binding upon them personally. It cannot, upon the face of this record, be pretended that Mrs. Fridenberg undertook to insure the validity of the petitioners’ warrant of authority for binding the estate of Parkhurst. In so far as they treated with her, representing themselves as having authority to bind said estate either under the will or by virtue of the order, and in so far as she lent them money in reliance upon the security of either, they must be held to make it good and to be personally bound.
The fact that the money lent by Mrs. Fridenberg was not used for the personal benefit of the petitioners makes no difference, as is shown by one or more of the authorities cited above. It was a good consideration for the promise, and they received it from her, and if they have used it so that they can never be reimbursed from the estate, it is not her fault. It makes no. difference that she may have known how they intended to use it.
It is moreover plain that the terms upon which the money was borrowed, as shown by the bond, (or so-called [147]*147promissory note) are not authorized by the order. There is a difference in the interest, and as to payment of taxes on the loan, should there be any. The mortgage shows other and additional differences.
There is nothing in the third plea, or bill of complaint made part of it, which estops the defendant in error from maintaining this action. It is a bill in equity to reach the lots. It is not inconsistent with and nowhere disclaims any right to a personal remedy ; but on the contrary prays for a personal decree for the balance which might remain unpaid after a sale of the lots. It is not alleged that any disposition was made of it inconsistent with the maintenance of this action, and yet it is alleged that it has been adjudicated by the Circuit and the Supreme Court. If such adjudication was adverse to this action it should have been pleaded.
In what we have said we have made no mention of the fact of Mrs. Wilson’s coverture. Of course we do not mean to say that she is personally liable on the instrument sued on. In passing upon the liability of her husband we have assumed all the time that she is not personally liable, yet if she was so liable her husband would likewise still be so.
What we have said is sufficient to dispose of the case in so far as the demurrer is concerned, but before passing to the second assignment of error it may be well to notice specially some points in the brief of counsel for the plaintiff in error, though when we have carefully considered briefs and the authorities they cite, it cannot be claimed, nor will the business of this court permit that we should do so, as a rule.
It is claimed that this instrument is a joint and not a joint and several instrument, and that the obligations sought to be enforced according to the declaration exist [148]*148only by virtue of the covenant declared on, and that a several judgment at law cannot be rendered on it except where, under chapter 1938, McC’s. Dig., p. 814, §19, there is a return of service as to one or more and not as to all. The declaration shows that Mrs. Wilson, at the time of executing the instrument, was the wife of the plaintiff in error. At law the instrument is not binding on her, but is his obligation alone, whether he be considered as a principal or as a surety. To have made her a party would have been not only useless but improper. In Ankerstein vs. Clarke, 4 Term Reports, 616, in which 3 Leving, 403, 1 Strange, 229, and 2 Mod., 217, are cited, it is said, quoting from 2 Mod.: “ The indenture being by baron and feme it was therefore true that it was by the baron,” &c. Unangst vs. Fitter, 84 Penn. St., 135; Robinson vs. Robinson, 11 Bush, 174; Smiley vs. Head, 2 Rich., S. C., 590 ; Foxworth vs. Bullock, 44 Miss., 457 ; Bayliss on Sureties, 148. The decision in U. S. vs. Price, 9 How., 83, cited for plaintiff in error, is to the effect that a court of equity will not give a remedy against the personal assets of a deceased surety when the remedy at law has been lost by the election of the obligee to take a joint judgment on a joint and several of ligation. The liability at law of the husband on this instrument is the question before us, and upon the authorities-we think he and no one else is liable in such forum, and in our opinion the case of U. S. vs. Price, and that of Pickersgill vs. Lahens, 15 Wall., 140, a suit to pursue the estate of a deceased surety upon a joint bond in equity who had died before the principal obligor therein, are not in point.
It is further contended that the act or acts resulting in the execution of the instrument sued on and the mortgage, the husband acting as co-administrator in virtue of his relation to the estate as husband of the executrix, and the-[149]*149"two constituting in law one, that is one representative of the estate, and the presence of the husband being necessary to give the transaction validity as the single act of the representative of the. estate, but he having no representative character or relation to the estate except as incident to his relation of husband of the executrix, and joining in the execution of the papers only because it was necessary to make such execution by her valid, and going no further than was necessary to so make it valid and complete, it cannot be considered as his single covenant or as binding on him personally.
The clear effect of the petition is to show that the plaintiff in error assumed to act as a representative of the estate of Parkhurst, with his wife, and was seeking with her to borrow money for the purpose of meeting liabilities which he thought it was bound for. In the absence of anything to the contrary the only “representative capacity ” which he can be held to have stood in, is that of executor in right of his wife. There is nothing in the order that excludes him from the rights of an administrator which his relation of husband gave him, nor from any liability which may legally attach to the exercise of such right or to him personally on any personal obligations to be assumed by him in dealing with third parties. Though he is not spoken of as “ executor in right of his wife,” he is in effect treated as such, both as to present and future concerns or management of the estate.
In Toller’s Law of Executors and Administrators, 241, 257, we find it laid down that if a married woman be an executrix or administratrix, the husband has a joint interest with her in the effects of the deceased, such as devolves the whole administration upon him and enables him to act with or without her assent. Edmondson vs. Roberts, 1 How., (Miss.,) 322. In Alabama it was held in Pistole vs. Street, [150]*1505 Porter, 64, that when an administratrix marries, the husband, during the joint lives of the wife and himself, is invested with all the lights of the administration, and she becomes incapable of controlling the property of her intestate or the acts of her husband in disposing of it; and in Williamson vs. Hill, 6 Porter, 184, that by the marriage of a feme sole administratrix, the husband becomes a joint administrator with her, and if the husband sue or be sued as administrator, the wife must be joined with him. * * * A widow who was executrix of her deceased husband married and was sued by a creditor of the testator, her husband being joined as a defendant although he had never-joined her in any bond under the statute requiring a husband to so join his wife when she shall become an executrix, or administratrix, and it was held that the statute did not apply, and the plaintiff' was entitled to judgment, Airhart vs. Murphy, 32 Texas, 131; see, also, Cassedy vs. Jackson, 45 Miss., 391; Barber vs. Bush, 7 Mass., 509. In Stairley vs. Rabe, McMullen’s Eq., 22, where an executrix married a secoud husband in necessitous circumstances, and there were infant children, and the husband was shown to be incapable of managing the estate in a judicious manner, and the estate likely to be made waste of, the court appointed a receiver to manage the estate. Lindsey vs. Lindsey, 1 Dess., 150. In Scott vs. Gamble, 9 N. J., Eq., 218, the doctrine held is that where, one intermarried with a widow who was executrix of her late husband, and had taken upon himself the execution of the will, he assumes all the responsibilities which devolved upon his wife as executrix. See also Smith vs. Smith, 21 Beavan, 385; Clough vs. Dixon, 8 Sumn., 594; 3 M. & C., 491. These authorities indicate somewhat the real character of the relation of a husband of an executrix. We think that the most favorable and only reasonable view to take of the [151]*151action of the plaintiff in error is that he, in view of the injunction, recognized his legal relation to the estate through his marriage, and was acting upon it. Taking this view, he is as much liable upon the instrument sued on as if he had been a co-executor by appointment and she a feme sole. There is not to be found in any of the proceedings, nor in the instrument sued on, or the mortgage, any reservation against the liability which the law naturally attaches to his action in the premises, a fact which strikes us as quite inconsistent with the idea of the parties having entertained the belief that he was acting in any but the ordinary representative capacity growing out of his relation to the executrix.
The cases of McBean vs. Halderman, 1 D. & E., 180, and Hodgson vs. Dexter, 1 Cr., 345, are those of public or governmental agents whose contracts, though in form personal, are ordinarily for reasons of public policy, and as an exception to the rule in other cases, held to bind the government only, if made by authority and on behalf of the government.
There was no error in the order sustaining the demurrer to the pleas.
II. The second assignment of error is that the court erred in rendering final judgment. The instrument filed wdth the clerk, and upon which he entered judgment, is under seal; it is sealed with scrolls which are attested or acknowledged in the bond to be seals ; it is a bond or covenant to a certain sumof money—$6,000—and interest thereon to pay he compounded, and to pay all taxes and assessments on the loan under the laws of the State of Florida. It is set out at length in the judgment. It is not described as an instrument under seal in the declaration, but is declared upon in the single count thereof simply as a promissory note for payment of the six thousand dollars and the interest. It is [152]*152not a promissory note. The copy of the instrument filed with the declaration, though a true copy of the real instrument, is not made part of the declaration by apt words, assuming this may be properly done. The clerk had no authority in law to enter judgment upon the production of the sealed instrument, though it is quite natural that, in the absence of better advice, he should have done so. No blame should be imputed to him. The declaration is upon an instrument of a different class from that upon which judgment has been entered.
There is a fatal variance between the allegation and the probate. Anderson vs. Bullock, 4 Mumf., 442. After the failure of the defendant, Wilson, to plead over under the Judge’s order, the proceedings were ex parte and the plaintiff was entitled to take judgment in accordance with his declaration, and not otherwise. He should have applied to the Judge for leave to amend his declaration, though, in view of our statutes as to forms of action, we lay no stress upon the fact that the action—trespass on promises—is not proper, yet we cannot overlook the fact that the declaration does not disclose an action on the instrument upon which judgment has been rendered. It was the declaration and not the copy that the defendant admitted when he failed to plead over. We cannot avoid reversing this judgment and remanding the case for further proceedings, not inconsistent with this opinion, and it is so ordered.