Dana v. Parker

• Court: U.S. District Court — District of Massachusetts
• Citation: Dana v. Parker, 27 F. 263 (D. Mass. 1886)
• Decision Date: 09 April 1886
• Parties: DANA, EX'X, v. PARKER.

27 F. 263

DANA, EX'X, v. PARKER.

United States Circuit Court, D. Massachusetts.

April 9, 1886

A. S Wait, for plaintiff.

Hutchins & Wheeler, for defendant.

COLT J.

In 1871 John H. Swasey, of Boston, applied to the probate court for the county of Grafton, in the state of New Hampshire, to be appointed trustee for Benjamin M. Swasey; and it being necessary for him to furnish two sureties, residents of New Hampshire, upon his bond, Edmund Burke, the plaintiff's testator, and Shepherd L. Bowers agreed to become sureties provided they were secured by a bond of indemnity, with the defendant, Parker, and one Jacob Hittinger, as sureties thereon. The bond of indemnity was given, and is the subject-matter of the present suit. The suit is brought by the executrix of Burke, one of the two joint obligees against Parker, one of the sureties on the bond. The case comes before the court on an agreed statement of facts. At the outset the objection is raised by the defendant that the plaintiff is not the proper person to being the action. We think the objection well taken. It does not appear but what Bowers, the joint obligee, is living, and, if so, he is the proper person to bring suit, for, Burke being dead, the right of action survives to the other joint obligee. Dicey Parties, 128; Donnell v....