Withers v. Haines, 2 Barr 435; Davidson v. Thornton, 7 Barr 128; and a scire facias, suggesting breaches, upon a judgment for the penalty of a bond, forms no exception to the rule. Sparks v. Garrigues, 1 Binn. 163. It is therefore unnecessary to inquire whether the defendant's intestate had a good defence to the bond on the ground that he was not personally liable thereon. But if this were not an open question, it would avail the defendant nothing in this case. The rule that the obligor is personally responsible upon a bond such as this, is, in our opinion, too firmly established to admit of doubt: Duvall v. Crane, 2 Wheat. 46; Hopkins v. Mehaffy, 11 S. & R. 126; Tassey v. Church, 4 W. & S. 346; Tippets v. Walker, 4 Mass. 595; 1 Chit. Pl. 35; Story's Agency, sec. 273. There is nothing in this bond, or in the circumstances under which it was given, to exclude it from the operation of the rule recognised and established by the authorities cited; nor has the rule as contended by defendants' counsel, been exploded by the decision in Abrams v. Musgrove, 2 Jones 292. But if this were otherwise, it is too late, as before remarked, to raise the question of the obligor's personal liability upon the bond. The only question to be considered is, what is the nature of the original judgment of which the plaintiffs seek to have execution? Was it a personal judgment against the defendant, binding his real estate, and upon which his personal estate could have been taken in execution; or was it a judgment against him in his representative character as trustee? If the former, then the administrators were properly substituted, and the plaintiffs are entitled to recover the amount found to be due; but if the latter, then the personal representatives of the intestate are not properly substituted, and the judgment must be for the defendant.

What then is the character of the judgment? Is it a judgment against the defendant de bonis propiis, or of the trust estate in his hands? To ascertain this, we must look to the declaration. This sets out a cause of action against the defendant, arising out of his personal obligation, and though he is there named trustee of John D. Mahon and Agnes M., his wife, as well as in the præcipe and writ, this may be considered mere matter of description, and rejected as surplusage. The plaintiffs have declared against the defendant personally, upon his own individual obliga

tion, and not against him in his representative capacity, upon an obligation springing out of his relation as trustee.

When an action is maintained against an executor or administrator in his own right, naming him as executor or administrator is merely surplusage. This rule is equally applicable to the case of a trustee. "It is the title to the cause of action set out, and not the addition, which is decisive of the question of the character, in which one is to be regarded as a party to the suit, and the verdict and judgment will be moulded accordingly." Geyer v. Smith, 1 Dall. 372, note; Wilmarth v. Mountford, 8 S. & R. 124; Grier v. Huston, 8 Id. 402; Ruble's Ex'r. v. Boileau, 10 Id. 208; Bixler v. Kunkle's Ex'rs., 17 Id. 309, 10; McCullough v. Sample's Ex'rs., 1 Penna. R. 422; Kline v. Guthart, 2 Id. 490; Geddis v. Irvine, 5 Barr 508; Miltenberger v. Schlegel, 7 Id. 243; Seip v. Drach, 2 Harris 352.

These authorities are conclusive of the reserved question. The judgment follows the declaration, and is a judgment against the defendant in his personal, and not his representative character. The plaintiffs are therefore entitled to recover.

Judgment for the plaintiffs on the reserved question, to be entered by the prothonotary on the verdict on payment of the

verdict fee.

See Carr v. Townsend's Ex'rs., 13 P. F. Smith 202.

In the District Court for Allegheny County.

WATTS v. HARDY.

(Vol. I., p. 42, 1853.)

In a

Proceeding by a landlord against a tenant for non-payment of rent, under the Act of April 3, 1830, to obtain an appeal an obligation by a

surety

was given as follows:

I become bail absolute in this case, condi

tioned for the payment of all costs that have accrued, and all costs that may accrue, in case the said judgment be affirmed; and also for all rent that has accrued, and may accrue up to the time of final judgment." Held that the obligation was good as a recognisance, and the maker liable for the rent accrued.

THE following are the facts agreed upon by the parties in this case, and upon which, if the Court is of opinion the plaintiff can recover, judgment is to be entered in his favor for $292 13 with costs, but if not, then judgment for defendant for costs:

An action was brought by Spencer Watts, the plaintiff here, against a certain Sarah Jordan, his tenant, to recover possession of the premises leased to her by said Watts, under the Act of 3d April, A. D. 1830, relative to landlord and tenant, before two aldermen, in which proceeding the said Watts obtained judgment "that he have possession ;" whereupon the said Jordan appealed to the Court of Common Pleas of Allegheny County, and the following recognisance of bail was taken by the alderman for said appeal:

"I become bail absolute in this, case, conditioned for the payment of all costs that has accrued, and all the cost that may accrue, in case that the said judgment be affirmed, and also for all rent that has accrued, and may accrue, up to the time of final judgment.

"A. A. HARDY."

Whereupon the proceedings were removed to the Court of Common Pleas. The case was tried upon the appeal in said Court, in No. 220, December Term, 1850, and the judgment of the alderman affirmed-pro ut record; and now this suit is brought upon the said obligation to recover $292 13, the rent and costs as aforesaid. The only question raised here is, whether the recognisance or obligation above stated is sufficient to hold the defendant liable. The Court to enter judgment in favor of the party entitled thereto, upon the facts herein before stated, with leave to either party to take out a writ of error.

EDWIN H. STOWE, Att'y for Pl’ff.
D. ROGERS, Att'y for Deft.

The opinion of the Court was delivered by

WILLIAMS, A. J.-This is a case stated for the opinion of the Court, and the only question submitted is whether the recognisance of the defendant is sufficient to entitle the plaintiff to The plaintiff instituted proceedings before two of the

recover.

aldermen of the city of Allegheny, under the provisions of the Act of April 3d, 1830, "relative to landlord and tenant," to obtain possession of the premises devised by him to Mrs. Sarah Jordan, in default of payment of rent, and of goods and chattels on the premises sufficient to pay and satisfy the arrears due. The aldermen entered judgment against the lessee, "that the premises should be delivered up to the lessor."

The tenant appealed from the judgment of the aldermen to the Court of Common Pleas, and the defendant Hardy entered into the following obligation before the aldermen, viz.: "I become bail absolute in this case, conditioned for the payment of all cost that has accrued, and all the cost that may accrue, in case that the said judgment shall be affirmed, and also for all the rent that has accrued, or may accrue up to the time of final judgment." Whereupon the proceedings were removed to the Court of Common Pleas, and the case was there tried upon the appeal, and the judgment of the aldermen affirmed.

This suit is brought upon the foregoing obligation of the defendant to recover the sum of $292 13, the amount of the costs and rent accrued upon the affirmance of the judgment of the aldermen. The question submitted for our determination is, whether the recognisance or obligation is sufficient to hold the defendant liable.

Technically considered, the obligation is not strictly a recognisance to which a penalty is said to be indispensable. Caldwell v. Brindle, 1 Jones 294; and perhaps a sci. fa. could not be sustained upon it. But if it be void as a statutory recognisance, does it follow that the plaintiff is not entitled to recover on it as a common law obligation? It was doubtless the intention of the aldermen to take the security required by the statute, but if, through their ignorance or inadvertence, the defendant was not bound strictly in accordance with its provisions, shall he be allowed to escape all responsibility? The Court is not trammelled in this case by the form of the action; nor are we bound to look beyond the case stated to ascertain the state of the pleadings between the parties. But if debt may be supported on a contract to pay a proportion of the costs expected to be incurred, as is ruled in 3 Lev. 429 (see 1 Chit. Pl. 109), there would seem

ment.

to be no difficulty in supporting an action of debt upon this obligation. We have, however, nothing to do with the form of action or the pleadings in the case; the only question submitted is, whether the obligation is sufficient to hold the defendant liable. It cannot be alleged that any injustice will be done to the defendant by permitting a recovery in this case. To entitle the tenant to an appeal, he agreed to become bail absolute for the payment of all the costs that had accrued, and that might accrue, in case the judgment should be affirmed, and also for all rent that had accrued, or might accrue, up to the time of final judgIn virtue of this stipulation, voluntarily entered into by the defendant, the tenant was allowed her appeal, and had the benefit of a trial in Court. The defendant cannot allege that he was entrapped by the omission of the penalty, and induced to incur a liability which he otherwise would not have incurred. The very obligation which he signed apprised him of the nature and extent of the liability he was incurring. All that the plaintiff now demands of him is, that he shall perform his undertaking in good faith. But he seeks to be discharged on grounds purely technical. While we are bound to do no violence to any principle of law, it is our duty to stretch its forms in order to prevent injustice, and compel parties to perform their agreements. If, then, this obligation cannot be considered or treated as a statutory recognisance, we are disposed to permit the plaintiff to recover on it as a common law obligation.

It is, therefore, ordered, that the judgment be entered in favor of the plaintiff on the case stated for $292 13, with costs of suit.

Affirmed, 10 Harris 35.