Waterman v. Dockray
| Decision Date | 24 February 1887 |
| Citation | 79 Me. 149,8 A. 685 |
| Parties | WATERMAN, Judge, v. DOCKRAY and others. |
| Court | Maine Supreme Court |
On exceptions by plaintiff to the ruling of the court in disallowing an amendment to the writ.
This was an action of debt on the probate bond of an executrix, brought in the name of the judge of probate, the obligee, for the benefit of the estate generally, under Rev. St. c. 72, § 16. The original declaration stated that the action was prosecuted in the name of John A. Waterman, "by Lewis Pierce, administrator de bonis non with the will annexed of the estate of James R. Dockray." The defendant demurred to the writ and declaration, and the law court sustained the demurrer, the plaintiff having leave to amend upon payment of costs. See Waterman v. Dockray, 3 Atl. Rep. 49. The case was then sent back to nisi prius, and the plaintiff filed the amendment specified in the opinion. This was disallowed by the presiding judge, and the plaintiff alleged exceptions.
C. W. Goddard, for plaintiff.
H. D. Hadlock, for defendants.
The bond in suit, being a common-law bond, is necessarily sued in the name of the person who was judge of probate when it was given, instead of in the name of his successor, and is destitute of power to enforce statutory penalties, but is available for the enforcement of all legal obligations assumed by the makers in the same manner as if it were a statutory bond. Cleaves v. Dockray, 67 Me. 118; Schouler, Ev. 8 143, and cases.
When this case was presented to the court before, (78 Me. 139, 3 Atl. Rep. 49,) the writ charged that the action was prosecuted in John A. Waterman's name by the administrator de bonis non of the estate of Dockray. That was held not maintainable, because the administrator had no adjudged claim of his own to recover, and no authority from the judge of probate to prosecute the action in behalf of the estate generally. The court say that Ammi R. Mitchell, a creditor, might have prosecuted the action, having had leave to do so, and that the plaintiff might amend his writ and declaration on payment of costs. The costs were paid by the plaintiff, and accepted by the defendants.
How to amend? If the writ was not a valid writ, was it not to amend so as to make it valid? If the decision was that the action could only be prosecuted by the creditor Mitchell, was it not to so amend as to make Mitchell the prosecutor? Have not the defendants voluntarily received a consideration for allowing an amendment that will give the proceedings full force and efficacy? Were the costs received to allow merely a useless amendment? In our opinion, the plaintiff is entitled to amend to any extent necessary to make his pleadings sufficient. But it will be a change of parties, and of the cause of action, it is argued by the adverse party. We think not, in any substantial sense. The real parties will be the same after as before amendment. The plaintiff was and still will be John A. Waterman. In his name the judgment must be recovered for all the creditors, and in his name alone will execution be issued. The original action was not commenced under section 10, c. 72, Rev. St. No particular claim was sought to be recovered. The attempt was to sue the bond under section 16 for the estate,—for the benefit of all. The essential party is John A. Waterman, the obligee in trust of all persons interested in the bond.
Nor is the cause of action changed in the least by the amendment. The cause of action is the same whether the suit be promoted by one or another person. It is essentially the same thing to the defendants, whoever the secondary parties may be. In any case, the cause of action is the bond, and a forfeiture under it. When a judgment is recovered, the judge of probate assigns it to the new administrator, to collect for the benefit of the estate generally. Rev. St. c. 72, § 18.
In the earlier practice such suits were brought by the judge of probate in his own name, upon the indemnity of some interested party to save him harmless of costs. In the present Massachusetts practice, the...
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