Paine v. Ball
Massachusetts Supreme Judicial Court
This was an action of debt, on an administration bond, brought in the name of the judge, and was endorsed thus: “ This suit is commenced for the benefit and use of Winthrop Ward, and William Ward, children and co-heirs, devisees and legatees of Jonathan Ward, late of Southborough, deceased.”
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This was an action of debt, on an administration bond, brought in the name of the judge, and was endorsed thus: “ This suit is commenced for the benefit and use of Winthrop Ward, and William Ward, children and co-heirs, devisees and legatees of Jonathan Ward, late of Southborough, deceased.” At the last September term, in this county, the parties, by a rule of the Court, referred the action to the determination of certain referees, who now report their opinion that the penalty of the bond is forfeited, by reason of divers breaches in the performance of the condition thereof; and they award…
1Opinion of the Court
By the Court.
If the judge of probate were not a party to the suit, the referees have exceeded their authority, by declaring the penalty of the obligation forfeited (2). This award of the referees may, perhaps, be good prima facie evidence of the amount due to these parties, upon a hearing in chancery, after the obligation is regularly adjudged to be forfeited. But the point had been repeatedly determined, that a judge of probate cannot refer an action brought in his name upon an office bond, before the case in Plymouth, which has been cited by the defendants’ counsel.
Buie discharged.
Vide…
2Cases cited1 opinion
- Robbins v. HaywardMassachusetts Supreme Judicial Court · 1820
3Cited by2 opinions
- Commonwealth v. HatchMassachusetts Supreme Judicial Court · 1809
- Thomas v. LeachMassachusetts Supreme Judicial Court · 1806