Hutchins v. Adams , 3 Me. 174 ( 1824 )

Mellen C. J.

The proper averment in this case would have been that the oxen were the property of the plaintiff as administrator of the estate of the deceased,: — 2 Chitty 327 — as in trover. But the allegation in the writ in this case may now be considered as sufficient, the omission, as well as that of the words contra pace m, being cured by the verdict. 1 Saund. 228 c. Stat. 1821, ch. 59, sec. 16. The motion in arrest of judgment is therefore overruled.

Neither can the motion for a new trial prevail. An administrator may maintain an action of trespass for an injury to personal property committed after the death of the owner, and before administration granted. 1 Chitty Pl. 166. Smith & al. v. Miller 1 D. & E. 480. 2 Saund. 47, note k. Here the lease of the cattle was terminated by the death of the owner ; and as soon as the plaintiff was appointed administrator, the property vested in him, and drew after it the possession. 2 Saund. 47, note 1. Of course no demand was necessary prior to the commencement of the action. The act of the defendant was a violation of the plaintiff’s rights and possession as administrator. As to the release, we consider it sufficient to remove any objection to the competency of the witness.

The exceptions are overruled, and the judgment of the Court of Common Pleas is affirmed.