Opinion
05-08-1811
Braxton's Administratrix v. Lipscomb
No counsel appeared for the appellant. The Attorney-General, for the appellee,
The declaration in this action, (which was debt upon an assigned bond, on behalf of Thomas Lipscomb, assignee of Robert Blackwell, who was assignee of Thomas Littlepage, against Mary Braxton, administratrix with the will annexed of George Braxton, deceased,) after setting forth the several assignments, and that action had thereby accrued to the plaintiff, concluded as follows: " Yet the said George in his lifetime, or the said defendant since his death, although often required, the said sum of money to the said plaintiff have not paid," & c. without stating that they had also failed to pay the same to the said Thomas Littlepage, the obligee, and to Blackwell, the intermediate assignee.
On the plea of " payment by the testator," a verdict was found and judgment entered for the plaintiff in the county court; from which the defendant appealed to the district court, where the judgment was affirmed, and a second appeal taken to this court.
Judgment reversed.
No counsel appeared for the appellant.
The Attorney-General, for the appellee, argued the cause upon another point presented by a bill of exceptions filed in the county court, but concerning which no opinion was given here.
OPINION
Saturday, May 11th. The following decision of this court was pronounced:
" The court is of opinion that the judgment of the district court is erroneous: therefore, it is considered that the same be reversed, & c. and this court, proceeding to give such judgment as the said district court ought to have given, is of opinion that the declaration is too defective to maintain the action, in this, that it is not averred, that neither the defendant, nor her testator, in his lifetime, paid the debt to the obligee, or to either of the assignees of the said bond, but only that neither of them paid the same to the said plaintiff; and that the judgment of the said county court is also erroneous; therefore, it is further considered that the said judgment be reversed, & c. and that the appellee take nothing," & c.