Pope v. Stacy

28 Vt. 96

• Court: Supreme Court of Vermont
• Decided: December 15, 1855
• Status: Published

Opinion

The opinion of the court was delivered by

Bedeield, Ch. J.

In this case the questions arise upon a demurrer to the declaration. And, first, it is objected, that it is not alleged that the plaintiff sues as administrator. The allegation is, that the defendant should answer to the plaintiff, administrator upon the estate, &c.; and, in the second count, that the defendant promised the plaintiff, such administrator as aforesaid. We know that some of the cases have held that such averments are not sufficient to show that the plaintiff sues as administrator, and therefore, that counts in this form, not stating the cause of action as arising in the life-time of the intestate, joined with counts where the cause of action did accrue during the life of the intestate, are improperly joined. But this kind of refinement is more ingenious than ingenuous, and, whatever may have been thought of such speculations, at one time, it is now well settled, practically, that no such refinement, in special pleading, shall be regarded as worthy of preservation, and they are, therefore, to be abandoned by courts, so as not to provoke the interference of legislation needlessly. TMs is certainly one qf the most refined in the books and we qannot adopt it. This is obviously an action where the plaintiff sues as administrator, and he may, in such action, join causes of action accruing during the life of the intestate and since his decease, if both are assets in the administrator’s hands. A conclusion in such a declaration to the damage of the plaintiff is sufficient.

Judgment affirmed.