Jamison v. Lindsay

Court of Appeals of North Carolina

Jamison v. Lindsay

17 S.C.L. 79

DecidedMay 15, 1828

StatusPublished

This text of 17 S.C.L. 79 (Jamison v. Lindsay) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Jamison v. Lindsay, 17 S.C.L. 79 (N.C. Ct. App. 1828).

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Opinion

Nott, J.

delivered the opinion of the Court.

The rule seems to be, that an executor or administrator shall not he liable for costs, where he is bound to sue in his representative character. This was an action on a note given to the intestate in his lifetime, and, therefore, must have been sued by the administrator in that character only; and although he could not ^ave maintained the action without resorting to the subsequent promise to himself, yet that furnished no new, distinct cause of action, but merely kept alive a former right by repelling the legal presumption of payment. I am aware that a difference of opinion has existed on this point, but I must still adhere to my own, until I can find some higher authority for changing it than I have yet found.

As to its being payable to hearer, that does not change the nature of the case. For unless the plaintiff had a personal interest, he ought to have sued as administrator: I will not say that he might not have sued as bearer; but he was under no obligation thus to change Ins legal character, in order to charge himself with costs. If the Judge had not allowed any costs, I should have been disposed to support the decision. I think, therefore, the defendant has no cause of complaint, and the motion must be refused. See Hullock on Costs, 173-5 ; and see also Luyten, administrator, v. Frink, 2 Bay, 166.

Motion refused.

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Nott, J.

delivered the opinion of the Court.

The rule seems to be, that an executor or administrator shall not he liable for costs, where he is bound to sue in his representative character. This was an action on a note given to the intestate in his lifetime, and, therefore, must have been sued by the administrator in that character only; and although he could not ^ave maintained the action without resorting to the subsequent promise to himself, yet that furnished no new, distinct cause of action, but merely kept alive a former right by repelling the legal presumption of payment. I am aware that a difference of opinion has existed on this point, but I must still adhere to my own, until I can find some higher authority for changing it than I have yet found.

As to its being payable to hearer, that does not change the nature of the case. For unless the plaintiff had a personal interest, he ought to have sued as administrator: I will not say that he might not have sued as bearer; but he was under no obligation thus to change Ins legal character, in order to charge himself with costs. If the Judge had not allowed any costs, I should have been disposed to support the decision. I think, therefore, the defendant has no cause of complaint, and the motion must be refused. See Hullock on Costs, 173-5 ; and see also Luyten, administrator, v. Frink, 2 Bay, 166.

Motion refused.

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Bluebook (online)

17 S.C.L. 79, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jamison-v-lindsay-ncctapp-1828.