Hodge v. Cole

• Decision Date: 14 September 1885
• Citation: Hodge v. Cole, 140 Mass. 116, 2 N. E. 774 (Mass. 1885)
• Parties: Ambrose M. Hodge, executor, v. John M. Cole
• Court: Supreme Judicial Court of Massachusetts

140 Mass. 116

2 N.E. 774

Ambrose M. Hodge, executor, v. John M. Cole

Supreme Judicial Court of Massachusetts

September 14, 1885

Argued September 8, 1885

Berkshire.

Bill in equity, originally brought by Mary E. Jenks, and prosecuted by the executor of her will, against the defendant as administrator of Sarah Jenks, and also in his personal capacity, to compel him to indorse a promissory note, and to pay the amount due thereon to the plaintiff. Hearing before Devens, J., who reserved the case for the consideration of the full court. The facts appear in the opinion.

Decree for the plaintiff.

A Potter, for the plaintiff.

T. P Pingree, for the defendant.

Field C. Allen, & Colburn, JJ., absent.

OPINION

By the Court.

The only question presented to us is whether, upon the facts alleged and proved, the court has jurisdiction in equity. The note in suit was made by the defendant, payable to the order of Sarah Jenks. A short time before her death, Sarah Jenks gave the note to Mary E. Jenks, the original plaintiff in this suit, but for some reason omitted to indorse it. Ordinarily, Mary E. Jenks, being the owner of the note, would be entitled to enforce it against the maker by a suit at law in the name of Sarah Jenks, or her administrator or executor. But the defendant, who is the maker of the note, is also administrator of the estate of Sarah Jenks. Mary E. Jenks could not bring a suit at law in her own name. A suit in the name of the administrator of the estate of Sarah Jenks would involve the anomaly of being a suit at law in which the same person is both...