Manning v. Osgood, 151 Mass. 148

Manning v. Osgood

151 Mass. 148 | Mass. | 1890

W. Allen, J.

The writ on its face is a writ of summons and attachment against the defendant personally. The order is not *150to attach the goods and estate of the intestate in the hands of the defendant as administrator, but to attach the goods and estate of George G. Osgood, administrator. Unless there is something to control the apparent meaning of the words, this cannot be taken as a writ against the estate of the intestate, which would authorize the taking of it on attachment. The defendant is described by the addition of administrator, but the writ does not in terms order the attachment of his goods as administrator. There is nothing in the record which can control the apparent meaning of the writ. The same addition to the defendant’s name is made in the title to the declaration as in the writ. The declaration is that the defendant owes for services performed “ by the plaintiff for the defendant, and at his request, . . . according to the account hereto annexed,” and for money to which the plaintiff is entitled by the laws of the place “ where the contract between the plaintiff and defendant was performed,” setting up a cause of action against the defendant personally.

In Yarrington v. Robinson, 141 Mass. 450, the writ ordered an attachment of the goods and estate of several defendants, described as administrators, but the declaration was that the defendants as administrators, etc., owed the plaintiff according to the account annexed, and the account was against the estate of the deceased. The court say, “ The court could not properly rule that the words in the writ and declaration designating the defendants, ‘ as they are administrators . . . deceased,’ were surplusage, because they characterize the action as one against the estate, and not against the defendants personally.”

In the case at bar, after the evidence was all in tending to show a cause of action against the defendant personally, and not against the estate of the deceased, the plaintiff contended that the words administrator, etc., were only descriptio personae, and the court ruled that the action could without any amendment be maintained against the defendant in his individual capacity. We think that the ruling was right.

The evidence was clearly sufficient to authorize the finding of the court that the defendant was liable.

Exceptions overruled.