| Vt. | Jan 15, 1832
Several points are made in this case. The declaration is alleged to be bad,
1st. Because the plaintiff declares in his private right and not as executor. Some difficulty has occurred on this point, but it has been generally in those cases, where an attempt has been made to join different distinct causes of action in one declaration. No question as to joinder of action is raised in this case. The simple question here is, whether the plaintifTcan maintain the action in his private capacity.
That he might sue in his representative character'is evident from the consideration, that the declaration shews the demand to be assets in his hands. But may he not sue also in his private capacity? It is a general rule, that for causes of action arising during the life of the testator, the executor must sue in his representative character; for it is in this character only that he is entitled to the action. But upon a cause of action accruing to him after the decease of the testator,and where no right was vested in the testator, the executor should sue in his private capacity. Thus qpon a contract entered into by him subsequent to the decease of his testator, although that contract may concern the testator’s estate, he should sue in his private character,as the person in whom the right originally vested.
The mode of declaring has always reference to the proof required to sustain the action. The declaration should allege that which the law requires to be proved, and it need not allege that which is not necessary to be proved. Whenever, therefore,'it becomes necessary for the plaintiff to show his representative character, or, in other words, to make projert of his letters testamentary, he should sue in his representative character; but on the other hand where this is not necessary, there is no reason for requiring the setting up that character in the pleadings. Perhaps
It is argued, however, that the different capacity in which the plaintiff appears in this and the formes action, is virtually a change ■of parties. If this be so, it is no more than was effected by the former judgement. In that instance his right of recovery depended upon his representative character, but in this, upon his being a party to the former judgement. It was, indeed, necessary to describe that judgement as haying been recovered in that character, in order to avoid a variance ; but it being so described, the reason for the change of capacity appears on the face of his declaration. The action, therefore, is correctly brought.
2dly. It is contended further, that the declaration is bad for want of any allegation that the defendant owes or detains. This defect, if.it be one, is a mere matter of form, and a ground of ■sp’ecial demurrer only. But matters of form are so interwoven with the rules which determine the rights and liabilities of parties, that it would be dangerous to dispense with them. Sealing is a .matter of form ; but to hold it to be immaterial would unsettle a great portion of the law of contracts.
That the omission of the debet and detinet,is a ground of special demurrer, appears from 2 Ckitty’s Pleadings, p. 179, and 6 Mod. Rep. 306. It is sufficient on this point that the precedents are so.
The case of Lord vs. Houston, (11. East. 62,) cited by the plaintiff, turns upon the mode of declaring peculiar to the court of Kings Bench. Ld. Eienborough, after alluding to the different modes of declaring in the two courts, says, “ There is no occasion for out; giving any opinion as to the mode of pleading in the common pleas.”
The declaration is, for this cause, insufficient.
(The declaration was amended upon terms.)