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Sullivan v. Holker

John L. Sullivan, Administrator, &c., versus John Holker

Sullivan v. Holker, 15 Mass. 374 (1819)

Court: Massachusetts Supreme Judicial Court · State Highest Courts
Decided: March 15, 1819
Judges: Parker
Citations: 15 Mass. 374

Cited by 10

Headnotes

In assumpsit by an administrator de bonis non, the promise may be laid to have been made to the first administrator.

Summary

This was assumpsit by the plaintiff, as administrator de bonis non of Thomas Russell, deceased, intestate. The declaration contained several counts. 1. Insimul computassent between the defendant and the said Russell, on 16th of February, 1790, and a promise to pay the balance found due ; 2. A like count as between the defendant and the original administrators of the intestate, on the 10th of August, 1796, and a promise to pay them the balance then found due; 3. Á similar count with the last, with an averment that the defendant, in consideration of his being so indebted, on the 30th of October, 1813, promised the plaintiff, in his said capacity, to pay him the sum so found due as aforesaid. The defendant pleaded, 1. Non assumpsit; 2. Non assumpsit infra sex annos; 3. Actio non accrevit infra sex annos. On all which issues were joined, and a verdict being returned for the plaintiff on all of them, and on all the counts, the defendant filed a motion in arrest of judgment, on the ground that the plaintiff had joined in his declaration counts, or causes of action, which could not by law be joined, viz., a promise to the plaintiff’s intestate, — a promise to the former administrators of the said intestate, —r and a promise to the plaintiff, the present administrator de bonis non; — and that some of the counts were bad.

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Opinion of the Court — Parker

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Parker, C. J.

The Court being all of opinion that the first count is good, and that the evidence given was sufficient to support it; and also that the promise made to the present plaintiff was sufficient to avoid the statute of limitations, which is pleaded against it, — there is no necessity for investigating the merits of the second and third counts. For, although the verdict is general, and, therefore, if one of the counts is bad, judgment must be arrested, — unless the verdict can be restricted in its application,—yet it is well * settled that, in such cases, the plaintiff may elect his count, and have the verdict made applicable to that,

only ; provided the judge will certify, or slate, that the evidence was proper to maintain the good count, and that there was no evidence but what might be properly applied to it. (a)

The objections made to the second and third counts are merely technical. But we are not satisfied that they have been sufficiently answered. It is said the second count is bad because it alleges a promise made to the former administrators, between whom and the plaintiff there is no privity ; and that the third is bad because the accounting with, or indebtedness to, the former administrators is no consideration to support the promise alleged, in this count, to be made to the plaintiff. For the reason before stated, we give no opinion upon the sufficiency of these counts.

Some time after the foregoing decision, the Chief Justice observed that the counsel for the plaintiff had referred the Court to the case of Hirst, Adm. de bonis non, vs. Smith, 7 D. & E. 182, in which it was decided that a count like the second in the present case is good, and also that a count like the third is good and sufficient; and his honor observed that, if the Court had seen that case seasonably, no doubt would have been entertained.

Judgment on the verdict.

1 Dougl. 376. — 2 Dougl. 746. — 3 Bingh. 334. — 1 B. & P. 329.—1 B. & A. 161.—8 East, 357.—2 Arch. C. P. 285 —Barnes vs. Hurd, 11 Mass. Rep. 58 .— Barnard vs. Whiting, 7 Mass. Rep. 358.—Patten & Al. vs. Gurney, 17 Mass. Rep 182. — Clark vs. Lamb, 6 Pick. 512 .

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Cited by 10 cases

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Relies on it most ⓘ

Emerson v. Thompson16 Mass. 429 (1820)
Minot v. City of Boston86 N.E. 783 (Mass. 1909)
Brown v. Webber60 Mass. 560 (1850)
McLellan v. Crofton6 Me. 307 (1830)
In re Jordan & Blake2 F. 319 (D. Me. 1880)
Foster v. Starkey66 Mass. 324 (1853)

Most recent

Minot v. City of Boston86 N.E. 783 (Mass. 1909)
Parker v. Fay47 A. 499 (N.J. Ct. of Ch. 1900)
In re Jordan & Blake2 F. 319 (D. Me. 1880)
Glines v. Smith48 N.H. 259 (1869)
Foster v. Starkey66 Mass. 324 (1853)
Brown v. Webber60 Mass. 560 (1850)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 1

Depth	Case	Cited by
	Barnard v. Whiting, 7 Mass. 358 (1811)	18