8 Cow. 198 | N.Y. Sup. Ct. | 1828
The points ruled by the judge, must be taken in reference to the facts of the case.
As to the last branch of the judge’s charge, there can be no question ; and had the verdict been founded entirely upon the fact of the defendant’s actual receipt of the money, I should not be willing to disturb it.
The judge is said to have erred, in permitting a recovery for the money due to the children of Jackson; but the objection is not well founded. The money was due to the plaintiff; and it could not be important what he was to do with it, or to whom it ultimately belonged. Suppose an administrator appoints an attorney to collect money due to the principal as administrator, and the money is collected, but not paid over upon demand; surely the action need not be in his character as administrator. The plaintiff must sue in his own right; and would, in such a case, be liable for costs on failure.
Upon a similar principle, the wife need not he joined;
New trial denied.
See New Tork Digest, tit. Principal and Agent.