State ex rel. Attorney-General v. Seay.

ready to take the office." We submit that the language of the court extends the term beyond the time fixed by the express words of the Constitution of Pennsylvania. The constitutional limit was, "until a successor is elected and qualified," but the court adds, "and ready to take the office." The construction of the word qualified was not directly before the court. There had not been an election, and that, under the law of Michigan, was decisive of the question. There was no question about the qualification or what amounted to qualification of one elected, for no one had been elected. We cannot, therefore, regard it as a direct authority on the question, but if it were, we think that the weight of authority is against it. The law abhors vacancies in public offices, and great precautions are taken to guard against their occurrence. The policy of the law is to have some one always in place to discharge the duties of public offices, and in a doubtful case the construction of a law fixing the tenure of an office would be greatly influenced by that consideration; but where, as in this case, there is a casus omissus resulting from giving the language of the law the only construction of which it is fairly susceptible, the courts must leave it to the law-making power to make provisions to avoid such a consequence.

By the term of the Constitution, Gale's term was to cease when a successor should be elected and qualified. His successor, McCord, was duly elected and duly qualified, and when that occurred Gale's right to hold over ceased, and the death of that successor, before his term commenced, did not revive a right in Gale which ceased when McCord qualified.

With the concurrence of the other judges, the demurrer is overruled, and judgment for respondent Seay.

Judgment for respondent.

The defendant signed an official bond as surety, on the representation that another surety, whose signature appeared thereon, had actually signed it. That signature was a forgery, and the person whose name had been forged did not communicate the fact to the defendant. The obligee was ignorant of the condition on which the defendant had signed. Held, that the defendant was liable.*

A

CTION on a bond. The opinion states the facts.

C. E. Moorman, for plaintiffs in error.

Crittenden & Cockrell, for defendant in error.

SHERWOOD, J. It is not necessary to review the action of the court in refusing to set aside the judgment by default, since we do not regard the matter which the affidavits contain as constituting any defense. The fact that the name of Milly A. McFarland, one of the apparent sureties on the administration bond, was forged, or that, when informed of such forgery by the administrator, the principal in the bond, after the acceptance of the bond by the proper officer, she did not inform those who had really signed the bond as sureties, of the forgery, cannot affect their previously incurred liability, or distinguish this case, in point of principle, from that of The State v. Potter, 63 Mo. 212; 21 Am. Rep. 440; since in this case, as in that, the bond was complete, and the condition upon which the sureties signed unknown to the officers, and equally broken; in the former case, by failing to obtain the signature of a certain person as co-surety; in the latter, by a like failure, coupled with the forgery of the name of the promised person.

We are unable, therefore, to make any substantial distinction between the two cases, and shall affirm the judgment. The other judges concur.

Judgment affirmed.

*See Guild v. Thomas (54 Ala. 414), 25 Am. Rep. 703, and note, 706; Hall v. Parker (81 Mich. 590), 25 Am. Rep. 540.

Rittenhouse v. Ammerman.

RITTENHOUSE V. AMMERMAN.

(64 Mo. 197.)

Promissory note― executed by executor · descriptio persona.

An executor, for an expense connected with his trust, executed a promissory note in the ordinary form, on interest, adding to his signature the words, "executor of," etc. Held, that the executor was liable individually, and not in his representative capacity, on the note.*

A

CTION on a promissory note. The opinion states the facts.

Lay & Belch, for appellant. There was no personal liability on the note. Bank of Troy v. Topping, 9 Wend. 273; 13 id. 557. See 2 Will. on Ex'rs, 1610; Ten Eyck v. Vanderpoel, 8 Johns. 120; Schoonmaker v. Roosa, 17 id. 301; Cobb v. Page, 17 Penn. St. (5 Har.) 469; Beall & Co. v. Ridgeway, 18 Ala. 117.

4. P. Rittenhouse, for respondent.

NORTON, J. The defendant in this case was the executor of one James Johnson, deceased, and as such he procured Johnson and Rittenhouse, who were engaged in publishing a newspaper, to publish notices for the sale of his testator's land, and afterward executed and delivered three several negotiable notes, payable to said Johnson and Rittenhouse, for such publication. The plaintiff, as administrator of the partnership estate of Johnson and Rittenhouse, instituted suit on said notes against defendant Ammerman, and obtained judgment against him. On the trial it was admitted that the estate of James Johnson was insolvent, and objection was made to the introduction of the notes in evidence, which was overruled, and judgment rendered against defendant de bonis propriis.

The questions presented for determination are: First, is the defendant liable in his individual or representative capacity, and if liable, is there a sufficient consideration to support the promise to pay?

The individual liability of defendant is in a great measure to be determined from the character of the notes themselves. The fol

*See Powers v. Briggs (79 Ill. 493), 22 Am. Rep. 175, and note, 179.

Rittenhouse v. Ammerman.

lowing is a copy of one of them, the other two being like it in all respects except as to date, amount, and time of payment.

"$15.00.

VIENNA, Mo., June 13th, 1874. Three months after date I promise to pay to the order of Johnson and Rittenhouse the sum of fifteen dollars for value received, negotiable and payable without defalcation or discount, and with interest from date, at the rate of ten per cent per annum, and if the interest be not paid annually, to become as principal and bear the same rate of interest.

"P. H. AMMERMAN,

"Executor of last will of James Johnson, deceased."

It has been repeatedly held that an administrator can maintain an action in his own, individual name, on a note made payable to him "as administrator, etc.," or "as executor, etc.;" the words "administrator, etc.," being mere words descriptive of his office or title to be rejected as surplusage or as descriptio persona.

No reason is perceived why this rule of construction should be departed from in the present instance, especially when the notes themselves contain no words indicating an intention or purpose to charge the assets of the intestate with their payment. If such had been the intention of the parties, or the maker of the note, it could easily have been expressed on the face of the paper, and in the absence of such an expression it cannot be inferred.

The notes show that the amounts named therein were to be paid at a future day with a rate of interest agreed upon, with which the defendant had no right in his capacity of executor to charge the estate, by his own personal obligation. Such a writing from these facts alone appearing upon it might well be construed to be the personal undertaking of the executor. 2 Will. on Ex'rs 1613. If the notes are to be regarded as the individual notes of the defendant, then it is said the promise to pay is without consideration. The notes import a consideration, and it was for the defendant to show that they were given without consideration. For this purpose it would have been competent for defendant to show that, at the time the notices were published by Johnson and Rittenhouse at his request, the estate alone was to be looked to for the work done, and in the absence of such proof the publisher might well look to him for payment, and his promise to pay would be supported by sufficient consideration.

Rittenhouse v. Ammerman.

66

It is said in 1 Pars. on Bills, 161, that an administrator can only bind himself by his contracts; he cannot bind the assets of the deceased. If he make, indorse, or accept negotiable paper, he will be personally liable even if he adds to his own name the name of his office, as signing for example: A, as an executor of B," for this will be only part of his description, or will be rejected as surplusage. But if he choose to exclude his personal liability expressly as by the words, "I promise to pay out of the assets of C. D. and not otherwise, then he is only bound as far as the assets extend." In the case at bar the executor could have limited his liability to the payment of the debt out of the assets of the estate. This, however, he has not done and the contract must be enforced as he has made it, and under it the only judgment which could have been rendered was a judgment de bonis propriis.

In the case of Wooldridge v. Draper, 15 Mo. 327, an analogous principle is recognized. It is there held that when an administrator sues upon a contract where the cause of action accrued to the intestate during his life-time, and fails in the action, the judgment for costs will be de bonis testatoris; but where the cause of action accrues to the administrator after the death of the intestate, and he sues and fails to recover, judgment for costs will be rendered against him de bonis propriis in his personal character. In such case, however, on a proper showing to the probate court having the estate in charge, he may be allowed his costs out of the assets of the estate. So in the case at bar Johnson and Rittenhouse, the publishers, had a right to look to the executor for the costs of publishing the notices, and the executor a right to look to the assets of the testator. In this particular the case we are considering is distinguishable from the cases to which we have been cited; for in most of them the promise of the executor or administrator related to the payment of debts created by the testator or intestate in his life-time, and in such cases it has been held where there were neither assets, nor forbearance on the part of the creditor, the promise could not be enforced for want of consideration.

We think the judgment on the facts of the case was rendered for the right party and it will therefore be affirmed, which by the con currence of the other judges is hereby done.

VOL. XXVII-28

Judgment affirmed.