Potter v. Mayo , 2 Me. 239 ( 1823 )

Mellen C. J.

delivered the opinion of the Court.

By the 70th section of the act of 1821. ch. 51. it is provided that in a suit upon a prohate-bond “ the writ, in addition to the “ usual indorsement of the name of the plaintiff or his attorney, “ shall also have the name of the person or persons, for whose “ particular use and benefit the suit is brought, written thereon.” The defendants plead in abatement; that “ the writ has not in “ addition to the usual indorsement of the name of the plaintiff “ or his attorney, the name of any heir, legatee, or creditor “ now living, of the deceased person, as whose executors the “ said Mayo fy als. made and executed the bond declared on, “ for whose particular use and benefit the action is brought, written thereon.” The first question is, whether the plea be good. The essence of it is, that the name of no heir, legatee, or'creditor is indorsed thereon. But this is no objection, if the writ be indorsed as the law requires ; and we have seen that it requires only the name of the person or persons, for whose use the action is brought, to be indorsed upon it. And it would seem, from the generality of the language used, that it was intended to embrace all persons, who might, in any capacity, be entitled to the money which is the object of the suit, whether, • as heir; legatee or creditor, or as executor or administrator of an heir, legatee or creditor, or as assignee of either of them, and so entitled to the sum sued for. And certainly the executor or administrator of an heir might indorse a writ or a probate-bond to recover the share due to such heir, and yet the name of the heir need not and cannot be indorsed after his death. It must be that of his legal representative. And why not his equitable representative or assignee? The plea therefore is bad, as it only alleges that the writ is not indorsed in a manner which the statute does not require.

But if the plea had been good, denying that the writ had the ' name of the person or persons, for whose use and benefit the action was brought written thereon; still, the replication would have been a good answer to it, because it denies it by affirming that the names of two persons are written thereon; the one, a creditor in interest, and the other an attorney in the original action, as by the record of the indorsement appears, and prays an inspection of it. The existence of this record not being denied, the demurrer admits it, and the facts appearing upon it. On inspecting it, we find that McLellan is assignee of part of the judgment recovered by Nathaniel Marlin against the executors of James Weeks aforesaid, and that Charles S. Lavéis was the attorney in the above action,,having a lien for his fees contained in the judgment. Here is an equitable interest in both, which the laws ought to protect; and on this demurrer, the fairness and consideration of the assignment and the lien are not to be questioned. The action then ought to proceed, that the sum which is due from the executors may be recovered in the name of the Judge of Probate for the use of those, who. have an equitable interest in it.

TFe adjudge the plea in bar bad,

and the defendants must answer over.