Rowan v. Lee , 26 Ky. 97 ( 1829 )

Judge Underwood

delivered the opinion of the Court.

Lee instituted an action of debt against Rowan, for $356, founded on an obligation by Rowan to A. Hill. In the first part of the decía-ration Lee states himself to be executor of Hill. In a subsequent part of it, he avers that he took out letters of administration, from the county court of Nelson, on Hill’s estate. The obligation is copied‘in the declaration. An averment is made, that the demanded said sum of $356, for it was payable upon demand. The breach is assigned in the non-payment of $300. The court rendered judgment for $356, with interest thereon from the service of the writ,

The distinction between an executor and administrator is perfectly defined by law, and when a plaintiff' demands a debt,in right of another, whose representative he assumes to be, he ought to set out with precision, his true character. The declaration, in this respect, is confused and uncertain, and, therefore, defective. The declaration is likewise somewhat informal, in the manner of setting out the covenant, but on that account, we would not reverse. There is, also, error in rendering judgment for a sum greater than that, for the non-payment of which the plaintiff complained.

For these reasons, the judgment of the circuit court is reversed, and the cause remanded, with directions to render judgment upon the demurrer, in favor of the defendant, in case the plaintiff .should not amend his declaration, but to give leave to amend, if it should be applied for, and for further proceedings.) not inconsistent with this opinion.

■Monroe, for plaintiff; Rudd, for defendant.

The plaintiff in error must recover his costs.