Packard v. Brewster , 59 Me. 404 ( 1871 )

Appleton, C. J.

This is an action of debt upon a bond in and by which the defendants “ are holden, and stand firmly bound and obliged unto Hanson Andrews, deputy-sheriff of the county of Knox, in the full and just sum of five thousand dollars, to be paid unto Clara C. Packard, her heirs or assigns,” etc.

The condition of the bond, after reciting an arrest of the principal defendant at the suit of this plaintiff, and describing the suit, is that if “ the above-bounden Hiram C. Brewster shall appear and answer unto said writ or process, and shall abide, do, and perform the judgment of 'the said court or the judgment of any other court before whom the said process shall, in due course of law, be finally determined, and shall not depart without license, then the above-written ’obligation to be void, otherwise to remain in full force and virtue.”

The bond in suit was undoubtedly returned as and for a bail-bond, for the officer on the original writ returns that he had arrested the defendant, Brewster, who gave him the bond returned with the writ, and thereupon he permitted him to go at large.

If the bond in question is to be deemed a bail-bond, this suit is not maintainable. In such case, the remedy of the party is by scire facias.

But the learned counsel- for the plaintiff contends, that this is a good bond at common law, and that the action may be maintained in the name, not of the obligee, but of the person for whose benefit the obligation was taken.

But if the bond is to be regarded as valid, which, to say the least, is extremely doubtful, yet such is not the law. The bond is given to Hanson Andrews. He is the person with whom the contract is made, and in whose name alone its performance can be enforced. Such, in the case of instruments under seal, has been the law from the earliest times. The obligation is to one person for the benefit of another. “ If an obligation be made to J. D. to use of I. S., this is a good obligation for I. S. in equity; and some have said he may release it; but this is much to be doubted; for it is certain I. S. cannot sue the obligor in his own name; but when he hath cause of suit, he may compel J. D. in chancery to sue the obligor.” Shep. Touch. 369. An action on a bond made to A. for the support of B. cannot be maintained in the name of B. Sanders v. Filley, 12 Pick. 554. On a promise under seal made to A. for the benefit of 0., the latter cannot sue. Millard v. Baldwin, 8 Gray, 484. On a bond made to the Commonwealth, for the use of the town of Northampton, no action lies for the town, though the forfeitures belong to the town. Northampton v. Elwell, 4 Gray, 81. A. covenanted with B. that he would maintain C., the wife of B., in case she survived him; held, after the death of B. that C. could not maintain an action on the bond. How v. How, 1 N H. 49. " The covenant not being with her ” observes Richardson, C. J., “ but with another for her use, it is clear the action cannot be supported.” “ If one, by deed, covenants or promises to pay a sum of money to A. to the use of B. or for the benefit of B., B. cannot maintain an action upon the instrument. Neither, if a covenant be made to three persons to pay money to them, to the use of a fourth, can the fourth person sue upon the deed.” Addison on Contracts, 242. When a bond is made to A. and B. and others " to be paid to the said A. and B.,” it was held in Richardson v. Jones, 1 Iredell, 296, that an action for the breach of the bond could not be brought in the names of A. and B, alone, without joining the other obligees unless it was shown that A. and B. were the surviving obligees. The party for whose benefit the contract is made has a remedy in equity against the party with whom it is made. The one has the legal, the other has the equitable interest in the contract.

The law on this subject is very clearly and accurately thus stated by Mr. Justice Shepley, in Hinckley v. Fowler, 15 Maine, 289: " When one promises another, for the benefit of a third person, such person may maintain assumpsit in his own name. When one covenants with another to do any act for the benefit of a third person, the rule differs from that on assumpsit, and the action cannot be maintained upon such covenant in the name of the third person for whose benefit it was made.”

Whether this bond is a bail-bond, or a bond at common law, it matters not. In either event the action is not maintainable.

Plaintiff nonsuit.

KeNT, WaltoN, DiciceRSON, and DaNEOKTh, JJ., concurred. Barrows, J. concurred in the result.