Vittum v. Gilman
Supreme Court of New Hampshire
This is an appeal from the decree of the judge of probate of Carroll county, refusing to extend the commission of insolvency on the estate of Ebenezer Wilkinson, upon the application of Benjamin C. Vittum, the appellant. He claimed to be a creditor of the estate, and his claim was for want of care and skill in the cure of his broken leg, which the said Wilkinson, as a physician and surgeon, had undertaken.
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This is an appeal from the decree of the judge of probate of Carroll county, refusing to extend the commission of insolvency on the estate of Ebenezer Wilkinson, upon the application of Benjamin C. Vittum, the appellant. He claimed to be a creditor of the estate, and his claim was for want of care and skill in the cure of his broken leg, which the said Wilkinson, as a physician and surgeon, had undertaken. There was evidence tending to prove-the want of due care and skill, but there was no proof of any special damages except what is to be inferred from a long confinement and suffering and the…
1Opinion of the CourtBellows, J.
The great question in the case is whether this cause of action did by law survive against the administrator; and this must be governed by the rules of the common law, which in respect to causes of action of this sort has not been changed by our statute; see Comp. Stats., ch. 198, § 14, and Gen. Stats., ch. 207, § 11.
It is generally true that a cause of action arising ex contractu survives against the executor; and it is also generally true that a cause of action arising ex delicto dies with the wrong-doer. In both cases there are well established exceptions. In respect to the latter, if the…
2Cases cited3 opinions
- Long v. MorrisonIndiana Supreme Court · 1860
- The United States v. James and John G. Daniel, Executors of Beverly Daniel, Late U. S. MarshalSupreme Court of the United States · 1847
- People v. GibbsNew York Supreme Court · 1832
3Cited by4 opinions
- Zostautas v. St. Anthony De Padua HospitalIllinois Supreme Court · 1961
- Kelley v. Volkswagenwerk AktiengesellschaftSupreme Court of New Hampshire · 1970
- Meffley v. CattersonSupreme Court of Colorado · 1955
- Clark v. ManchesterSupreme Court of New Hampshire · 1883