Holbrook v. White

13 Wend. 591

Opinion

By the Court,

Savage, Ch. J.

The only question submitted to the court was whether the plaintiff as an administrator, had a right to recover the penalty given by the revised statutes, 2 R. S. 501, § 8, 9; and the court decided he had not, and instructed the jury to find a verdict for the defendant. In my opinion the court were clearly wrong. The property, at the time of the levy and sale, was the property of the plain- ^; he and no other person was the legal owner. It was unnecessary, and perhaps improper for him to have described himself as administrator. He did not properly sue in his representative character; and had he failed, could not have avoided the payment of costs. The property, when levied on, was not the property of .Matthews; no right of action had accrued to him before his death, and hence the plaintiff did not sue as his representative. It is true that the plaintiff’s title to the property was derived from Matthews; but it is enough that he was the legal owner.

The judgment must be reversed, with single costs ; a venire de novo to be issued by Saratoga common pleas.