Somers v Erskine

JurisdictionIreland
Judgment Date01 January 1943
CourtHigh Court
Date01 January 1943
Somers
and
Erskine

Survival of action on defendant's death - Action against solicitor for professional negligence - Whether action founded on contract or on tort - Whether action survived against defendant's representative.

The plaintiff sued J. E., a solicitor, for damages for negligence in the discharge of his professional duty to the plaintiff. J. E. died after the action was commenced and the action was continued against J. E.'s executrix as defendant. The pleadings were subsequently amended, and one of the issues raised was whether or not the cause of action had survived against the new defendant. By consent, this question was separately determined as a preliminary issue. Held by the High Court that the action was in substance founded on contract and accordingly did not abate with the death of the original defendant. In considering whether an action is founded on contract or on tort the substance of the claim must be regarded rather than the form of the pleadings. Davies v. Hood,UNK 88 L. T. R. 19 followed. Principles to...

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4 cases
  • Finlay v Murtagh
    • Ireland
    • Supreme Court
    • 1 January 1979
    ...that, therefore, he was entitled to have his action against the defendant tried by judge and jury if he so wished. Somers v. ErskineIR [1943] I.R. 348 and Hedley Byrne & Co. Ltd., v. Heller & Partners Ltd.ELR[1964] A.C. 465 considered. Supreme Court [1976 No. 1206 P.] Finlay v. Murtagh Vinc......
  • Finlay v Murtagh
    • Ireland
    • Supreme Court
    • 21 November 1978
    ...duty arising out of the obligations undertaken by the contract". 5The third High Court case to which we were referred is Somers v.Erskine 1943 I.R. 348. There the question was whether an action commenced by a client against a solicitor for negligence, and sought to be continued against the ......
  • Somers v Erskine (No. 2)
    • Ireland
    • Supreme Court
    • 1 January 1945
    ...said sum of £21 will be set aside, and, subject thereto, the appeal will be dismissed. (1) [1941] I. R. 183. (2) See Somers v. Erskine [1943] I. R. 348. (1) Reported sub. nom.Levingston v. Somers [1941] I. R. 183. (1) 1 Cab. & E. 519. (2) 5 B. & C. 259. (3) 3 B. & Ald. 626. (4) 17 L. R. Ir.......
  • Somers v Erskine
    • Ireland
    • Supreme Court
    • 1 January 1943

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