majority"> Loomis, J.

This is a writ of scire facias, upon a process of foreign attachment. In the original suit the present defendant was factorized as executor of the will of Joseph W. Lewis, and the debt attached was a legacy given by the will to Albert C. Lewis, the defendant in that suit. Judgment having been obtained against the said Albert, and demand having been duly made upon the garnishee for the payment of the amount of the judgment, which was less than that of the legacy, and payment having been refused, the creditor has brought this scire facias, to compel the garnishee to pay the amount of the judgment. If the defendant had been factorized only in his individual capacity the scire facias would of course lie against him in his individual capacity, and the amount of whatever judgment should be recovered would be payable out of his own estate as his own proper debt. But as lie was factorized in his capacity as executor the scire facias lies against him only in that capacity, and the judgment that may be recovered against him would be payable only out of the estate of the testator in his hands.

While the declaratory part of the writ sets out in detail the facts necessary to sustain a suit against the defendant in his representative capacity, and which show clearly that it could not be maintained against him in his individual capacity, yet by some inadvertence the liability averred is that of the defendant personally, the language of the averment being “ that the said Pendleton has become liable in law to pay the *16same out of liis own estate as his own proper debt.” And that part of the writ which, as distinguished from the declaratory part, may be called the writ proper, and which really constitutes all of what is strictly the writ, runs wholly against the defendant in his individual capacity, and treats the liability as wholly personal, and the amount to be recovered as recoverable wholly from his private estate. Its language is as follows:—“These are therefore to require you [the sheriff] to attach, Ac., the goods or estate of the said David Pendleton, and make him to know that he appear, Ac., then and there to show reasons, if any he have, why judgment should not be rendered in favor of the plaintiff against him, the said Pendleton, for the amount of said judgment and execution and officer’s fees, and the costs of this suit, as his own proper debt, to be paid out of his estate.”

Without demurring to the declaration, either generally or specially, the defendant pleaded the general issue, upon which issue the case was tried to the court and the facts found, and it is now reserved for our advice as to the judgment that should be rendered on the facts so found.

It is now admitted that no judgment can be rendered against the defendant individually, and none was claimed on the trial below, but it is claimed by the counsel for the plaintiff that a judgment can be rendered against the defendant in his representative capacity. It is said that the defect of the declaratory part of the writ is one of form only, which could be taken advantage of only by a special demurrer, and that that of the writ proper could have been taken advantage of only by a plea in abatement; and that by pleading to the merits the defendant has waived all objection to both these defects.

But the difficulty is that the suit is brought against the defendant wholly in his individual capacity. Not only is his liability alleged to be that of himself personally, but the writ runs entirely and only against him personally. It is not a case of mere defective averment, which would be aided by verdict, nor a case of misnomer or misdescription of the defendant, which might be reached by a plea in abatement; *17but the defendant is correctly named, and is sued in that individual capacity which belongs to every person; and he comes into court for the very purpose for which he is cited in, namely, to show cause why the plaintiff should not have judgment against him as for his own proper debt and out of his own proper estate. When he gets into court the case against him proves to be one that the facts alleged will not sustain; and it makes no difference that he knew this before he came in and came with a certainty of defeating the suit. The whole question is—do the facts- alleged impose a liability upon him personally ? If they do not no judgment can be rendered against him personally. Clearly they do not, and no such judgment can be rendered. It is admitted that none can be. But how can one be rendered against him as executor ? He is not sued in that capacity. If he had been misnamed, and had failed to plead that fact in abatement, ho could not afterwards make the point. If he had been sued as administrator when he was executor and had not pleaded that matter in abatement, he could not afterwards make the point. He is sued as an individual. He does not plead in abatement that he should have been sued as executor. Ho therefore can not afterwards make the point that ho should have been so sued. But he does not wish to make the point. He is not now claiming that judgment should be rendered against him as executor and not as an individual. He is claiming that judgment can not be rendered against Mm as an executor, and that if any judgment can be rendered against him at all, it must be against him personally; but that such a judgment can not be rendered because the facts alleged and found will not warrant it. He was sued as an individual, he never disclaimed liis character as an individual, and now he says that judgment must be rendered against him as an individual or not at all. It would be wholly another matter if he had been sued in his representative capacity, and the declaration had been merely defective in form. The suit is brought against Mm as an individual and judgment must follow the suit, if the facts will warrant the judgment at all.

But it is said that the defendant not only pleaded the gen*18eral issue, but set up certain matters in his notice which pertained to him only as executor, and it is claimed that by so doing the defendant has assumed the defence of the case as executor and has thus waived all objection to the suit going on against him as executor. We arc not prepared to say that a defendant might not so place himself upon the record as to warrant a judgment against him in the capacity which lie had assumed in the pleadings, although he was not sued in that capacity in the first instance. But in this case the defendant pleads only in his individual capacity, and it is only in the notice appended to his plea that any allusion is made to the fact that ho is executor. The plaintiff had alleged in his writ that at the time the factorizing copy was left with the defendant “there was in the hands of the said Pendleton a legacy bequeathed to the said Albert 0. Lewis, in and by said will, of a much greater amount than the amount of said judgment, Ac., which said legacy became due and payable before said demand was made, Ac.” Now the defendant had a perfect right to give notice of any special point to which he should direct his evidence. His plea of the general issue traversed all the allegations of the declaration and of course the particular one which we have just referred to,’and his notice was properly no part of the pleadings or of the record. Ho however appends to his plea a notice alleging that he was executor of the said Joseph 0. Lewis, that all the personal property was insufficient to pay the debts, that 'the real estate could not be sold without great sacrifice, which the testator had directed not to have made, and that it could not be known until it was sold whether there would be anything left with which to pay the legacy in question. This notice being merely an appendage of the plea must be regarded as made, as was the plea, in the defendant’s individual capacity, and avo think his statement in it with regard to the condition of the estate and the fact that he was executor, not sufficient to bring him upon the record as a party to the suit in his representative capacity. We think something more than a more waiver of objection is needed in such a case, while we *19fail to find what can properly bo regarded even as such a waiver.

We advise judgment for the defendant.

In this opinion the other judges concurred.

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