Legal Opinion

Seip v. Drach

Supreme Court of Pennsylvania

Decided December 15, 1850PublishedCited by 6 opinions

Error to the Common Pleas of Northampton county. This was an action in case, brought by Jacob Seip, surviving administrator of the estate of Jacob Heller, deceased, against Joseph Drach, executor, &c. of Simon Heller, deceased. Pleas were non assumpsit, payment with leave, &c. Old Jacob Heller, having made his will, in which he appointed Jacob Heller, the younger, and Simon Heller, his executors, died.

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Error to the Common Pleas of Northampton county. This was an action in case, brought by Jacob Seip, surviving administrator of the estate of Jacob Heller, deceased, against Joseph Drach, executor, &c. of Simon Heller, deceased. Pleas were non assumpsit, payment with leave, &c. Old Jacob Heller, having made his will, in which he appointed Jacob Heller, the younger, and Simon Heller, his executors, died. These executors, having taken upon themselves the execution of the trust, on the 25th July, 1828, filed an account, whereby it appeared 'that they were indebted to the estate of their testator…

1Opinion of the Court

The opinion of the court was delivered by

Rogers, J.

— It is a principle too well settled to admit of dispute, that a misjoinder of actions or of counts in a declaration, is a matter of substance, and consequently is bad on general demurrer, in arrest of judgment, or in error: 2 Williams on Dx’rs. 1191; 24 Wend. 184, Gillet v. Hutchinson; and Malin v. Bull, 13 Ser. & R. 443. The principal point is, whether there is an incongruity of counts as the defendant alleges, viz. so that they require different judgments, one de bonis testatoris, the other de bonis propriis of the executor. There cannot,…

2Cases cited2 opinions

  1. Fritz v. ThomasSupreme Court of Pennsylvania · 1836
  2. Neil v. AbelNew York Supreme Court · 1840

3Cited by6 opinions

  1. Griggs v. NadeauCourt of Appeals for the Eighth Circuit · 1915
  2. Barrett v. KingSuperior Court of Pennsylvania · 1916
  3. Frick v. ShimerSuperior Court of Pennsylvania · 1904
  4. Commonwealth v. Firemen's Fund Indemnity Co., Pennsylvania Court of Common Pleas, Northampton County1934
  5. Green v. PattersonSuperior Court of Pennsylvania · 1897

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