Sigourney v. Severy , 58 Mass. 176 ( 1849 )

Metcalf, J.

We consider the question in this case as settled by the decision in Hodges v. Holland, 19 Pick. 43. That was an action on a note made payable to the plaintiff, or order, and which he had indorsed over, for a valuable consideration, before action brought. It was there said by Mr. Justice Putnam, that the St. of 1786, c. 52, § 5, (which is like the Rev. Sts. c. 120, § 4, on which the present case turns,) “ does not require that the action shall be brought by the promisee for his own use, or otherwise ; but he may maintain the action, and recover all the money which should be due upon a litigation between the original parties. And it is of no consequence to the maker, whether the promisee shall put the money into his own pocket, or pay it over honestly to him to whom it has been equitably or legally transferred And if the action is brought for the benefit of the indorsee or bona fide holder, without any objection on the part of the payee, it furnishes no legal or equitable defence to the maker.”

Now if an action can be maintained on a note payable to A. or order, when brought in the payee’s name, with Ms consent, for the benefit of the holder, to whom he has transferred it by indorsement, so may an action on a note payable to A. or bearer be maintained in his administrators’ names, with their consent, for the benefit of the .holder to whom he has transferred it by delivery. There might be a difference between the two cases, if the administrators, by consenting that such action be brought in their names, rendered the estate of their intestate liable to costs, on failure to support the action. But, by our system of law, administrators are personally liable for costs, when they bring actions in their representative capacity, which they cannot support; and they can be indemnified out of their intestate’s assets, only by the allowance of the court of probate, upon their showing that such costs are a just charge upon those assets. If costs were incurred by administrators, in a. suit like the present, no court of probate would allow them to be a charge upon the deceased’s estate. Judgment for the plaintiffs.