Osborn v. Bell
New York Supreme Court
Assumpsit, tried at the Rensselaer circuit in November, 1844, before Parker, Cir. J. The suit was originally commenced in January, 1843, by the plaintiff’s intestate, but he dying after issue joined, the present plaintiff was appointed his administratrix, and by an order "of the court was substituted as plaintiff. The declaration contained the general counts in indebitatus assumpsit for goods sold, and money had and received. Vies., non-assumpsit.
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Assumpsit, tried at the Rensselaer circuit in November, 1844, before Parker, Cir. J. The suit was originally commenced in January, 1843, by the plaintiff’s intestate, but he dying after issue joined, the present plaintiff was appointed his administratrix, and by an order "of the court was substituted as plaintiff. The declaration contained the general counts in indebitatus assumpsit for goods sold, and money had and received. Vies., non-assumpsit. The plaintiff claimed to recover for certain factory machinery, namely, a lathe and two hat carders. The facts appearing upon the trial, which are…
1Opinion of the Court
By the Court, Beardsley, Ch. J.
Assuming that the lathe and bat carders, when levied on by the defendant, were the property of G. It. Osborn, an action of trespass, if the taking was tortious, would have been an appropriate remedy for him while living, and after his decease a similar action might have been brought by the plaintiff as administratrix. The last proposition was not true at common law, the maxim being actio personalis moritur cum persona; (1 Ch. Pl. 78, 9, ed. 1837; Broom's Legal Max. 400;) but the statute is explicit that trespass may, in such case, be brought by the personal…
2Cases cited3 opinions
- Whiting v. SullivanMassachusetts Supreme Judicial Court · 1810
- Cravath v. PlymptonMassachusetts Supreme Judicial Court · 1816
- Willet v. WilletSupreme Court of Pennsylvania · 1834
3Cited by20 opinions
- Howard v. SwiftIllinois Supreme Court · 1934
- Seastrand v. D. A. Foley & Co.Supreme Court of Minnesota · 1919
- McGoldrick v. . WillitsNew York Court of Appeals · 1873
- Herrmann v. GleasonCourt of Appeals for the Sixth Circuit · 1942
- Abbott v. BlossomNew York Supreme Court · 1873
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