Jenks v. Edwards
Supreme Court of Alabama
Wjmt of error to the circuit court of Wilcox. This was an action of assumpsit on a promissory note, in the name of Edwards, for the use of Burke & Ratcliff, against the plaintiff in error. The defendant below pleaded in bar, that the plaintiff, Edwards, ought not to have and maintain his action, because he departed this life previous to its commencement.
Read the full summary
Wjmt of error to the circuit court of Wilcox. This was an action of assumpsit on a promissory note, in the name of Edwards, for the use of Burke & Ratcliff, against the plaintiff in error. The defendant below pleaded in bar, that the plaintiff, Edwards, ought not to have and maintain his action, because he departed this life previous to its commencement. To this plea there was a demurrer, which, being sustained, the defendant declined to plead over, and a judgment by default was rendered against him. The plea was a bar to the action, and, as such, properly pleaded. [1 Chitty’s Plead. 434,465.]
1Opinion of the CourtCollier, C. J.
The act of 1812 enacts, that where any person shall institute a suit in the name of another, for his own use, the death of the .person, in whose name the suit is instituted, shall not abate the same; but the suit shall progress, and be tried in the same manner as though eit was actually brought in the name of the person for whose use it was instituted. [Clay’s Dig. 313, sec. 3.] This statute only renders unnecessary the revival of the action where the nominal plaintiff dies during its pen-dency ; but it does not authorize the institution of a suit in the name of him who appears to have the…
2Cited by7 opinions
- Harrison v. MahornerSupreme Court of Alabama · 1848
- Baker, Fry & Co. v. IngersollSupreme Court of Alabama · 1861
- Crump v. WallaceSupreme Court of Alabama · 1855
- Tait v. FrowSupreme Court of Alabama · 1845
- Karrick v. WetmoreCourt of Appeals for the D.C. Circuit · 1903
2 more not listed; retrieve them via the Exa API.