Farnum v. Virgin , 52 Me. 576 ( 1864 )

The opinion of the Court was drawn by

Appleton, C. J.

As the plaintiff sues as administrator,

the parties would not be admissible under E. S., 1857, c. 82, § 83.

By the Act of 1862, c. 109, they would be competent witnesses as to facts happening, after the decease of the plaintiff’s intestate. But the defendant was asked if he had not paid the notes in controversy before the decease of Nancy Virgin, upon whose estate the plaintiff is administrator. The answer to this inquiry was properly excluded.

The plaintiff is no more a nominal party than any other administrator or executor, who is prosecuting the claims of the estate of his intestate. The statute of 1859, c. 79, does not declare administrators or executors, as such, to be nominal parties. If it were to be held that all administrators and executors were nominal parties, it would operate as a repeal of E. S., 1857, c. 82, § 83, which certainly was not the intention of the Legislature. The general rule as established by E. S., 1857, is only modified so far as relates to the executors or administrators of nominal parties and not otherwise. Nancy Virgin, if the owner of the notes, could not be regarded as a nominal party. The plaintiff, therefore, is not the administrator of a nominal party. Drew v. Roberts, 48 Maine, 35.

Two of the notes in suit were payable in part in specific articles and, consequently, were not negotiable. But, when an express promise to pay the assignee is proved, an action may be maintained in his name. Smith v. Berry, 18 Maine, 122. The jury must have found there was such promise.

The evidence is not so clear tor the defendant as to require us, upon legal principles, to set aside the verdict rendered against him. Motion and exceptions overruled.

Judgment on the verdict.

Cutting, Dayis, Kent, Walton and Barrows, JJ., concurred.