#### RUFUS J. BEATY v. CHARLOTTE GINGLES et al, Ex’rs.

An action against a person as “ executor ” for an act done, or a contract made by him after the death of his testator, cannot be sustained, and the words “ as executor” rejected as surplusage; as may be done where the action is for the party on his own possession, and these words are improperly inserted.

The cases Hailey v. Wheeler, 1 Jones’ Rep. 159, and McKay v. Royal, 7 Jon'es’ Rep. 216, cited and approved.

This was an action on the case, tried before Dice, J., at Fall Term, 1860, of Gaston Superior Court.

The plaintiffs declared for a deceit and false warranty in the sale of a slave against the defendants as executors of Edle3r Gingles. The proof was, that after the defendants qualified as executors of said Gingles, that they offered the slave in *303question at public sale, and that plaintiff became the purchaser. He also gave evidence of the unsoundness of said negro, and that the defendants were aware of it at the time of the sale.

Defendants counsel asked his Honor to charge the jury that plaintiff could not recover against them in their representative capacity, but that if they had practiced a fraud or deceit on the plaintiff, in the sale of the said negro, they were personally responsible for it, and that the estate of their intestate could not be charged therewith. His Honor refused so to charge, but told the jury that if they believed, from the testimony, that the negro was unsound at the time of the sale, and that defendants were aware of it, and did not disclose it to the purchaser at that time, the action was well brought, and the plaintiff was entitled to recover.

Verdict and judgment for the plaintiff'. Appeal by the defendants.

No counsel for plaintiff in this Court.

L. E. Thompson, for the defendants.

Battle, J.

"Where an executor sues upon the possession of his testator, he must sue as executor, because he must make proferí, in his declaration, of his letters testamentary, but if he sue upon his own possession, he must sue in his own name, because his possession has fixed him with assets. If, however, he sue “as executor” when the action is brought upon his own possession, the words “as executor” are considered as mere surplusage ; Hornsey v. Dimocke, Ventris 119 ; Com. Dig. Pleader, (I. D. 1); Cotten v. Davis, 3 Jones’ Rep. 355. But an action against a person “as executor” for an act done or a contract made by him after the death of his teslator, cannot be sustained; for, in such an action, he must be sued in his individual, and not in his representative capacity, and the words “ as executor,” cannot be rejected as surplusage. This is well settled by the case of Hailey v. Wheeler, 4 Jones’ Rep. 159, where the subject is fully discussed; and that case has *304since been referred to, and confirmed by the very recent one* of McKay & Devane v. Royal, 7 Jones’ Rep. 426.

Per Curiam,

Judgment reversed and a venire de novo..