Ketchum v. Ketchum
New York Supreme Court
■ The declaration' was in assumpsit," upon a promissory note, made by the defendant to the testator; also for money lent by him to and paid for the defendant, and 'for money had and received by the defendant to the use of the testator, in his lifetime; with an averment that, in con-1 ' , sideration of the indebtedness to the testator, the defendant, after the testator’s death, promised to pay the several sums, so due the testator, to the plaintiff, as this executor.
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■ The declaration' was in assumpsit," upon a promissory note, made by the defendant to the testator; also for money lent by him to and paid for the defendant, and 'for money had and received by the defendant to the use of the testator, in his lifetime; with an averment that, in con-1 ' , sideration of the indebtedness to the testator, the defendant, after the testator’s death, promised to pay the several sums, so due the testator, to the plaintiff, as this executor. On the trial, evidence was offered by the plaintiff, and received by the Judge, touching promises made by the defendant to the…
1Opinion of the Court
Curia.
The rule is, that where an executor or administrator unnecessarily sues in his representative character; that is, where he might have brought the action in his own name; if he is nonsuited, or there shall be a verdict against him, (5 T. R. 234-5,) he shall pay costs. The mere change of the form of action shall not protect him. In this rule the counsel agree; and it is abundantly supported by the cases cited on both sides. Then the only question is, whether Ketchum. the plaintiff in this suit, necessarily described himself as executor. On looking into the cases, we think he did. The case…
2Cited by10 opinions
- Callender's Administrator v. Keystone Mutual Life InsuranceSupreme Court of Pennsylvania · 1854
- Lawrence v. VilaWisconsin Supreme Court · 1866
- Lynch v. WebsterSupreme Court of Rhode Island · 1891
- Holdrige v. ScottNew York Supreme Court · 1869
- Mullen v. GuinnNew York Supreme Court · 1895
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