Pugh v. Ottenkirk , 3 Watts & Serg. 170 ( 1842 )

The opinion of the Court was delivered by

Sergeant, J.

Although the language of the Act of 16th June 1836 is more precise than that of the Act of 20th March 1810, yet, substantially, the provisions are the same, so far as respects the right of executors and administrators to appeal from an award of arbitrators without giving bail and performing the conditions ordinarily required. It is the character of the suit that determines this right; and that does not depend on the mere naming the party as executor or administrator in the process or declaration, but upon the cause of action as developed in the pleadings, and whether the recovery is sought in a representative or individual capacity. In the case before us it is plainly the latter, for the suit is founded on the promise of the defendant to pay the draft out of funds when received — a promise on which the intestate, Catharine Irick, never was liable to the plaintiff; nor could the defendant be liable, except in consequence of his own original undertaking by accepting the draft, which made him personally responsible upon it. The case is stronger- against the defendant than that of Masterson v. Masterson, (5 Rawle 137), where the assumpsit alleged in the declaration was in consequence of the defendant’s having, as executor, received funds out of which a bequest had been made to the plaintiff.

Judgment affirmed.