President of the State Bank v. Welles
Massachusetts Supreme Judicial Court
Debt on a joint and several bond made by Edward V. Baxter, Thompson Baxter, and the defendant’s testator, conditioned that E. V. Baxter should faithfully discharge his duties as a teller of the State Bank.
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Debt on a joint and several bond made by Edward V. Baxter, Thompson Baxter, and the defendant’s testator, conditioned that E. V. Baxter should faithfully discharge his duties as a teller of the State Bank. The defendant pleaded in abatement, that an action for the same cause had been commenced in the Court of Common Pleas against Touro and T. Baxter as survivors of E. V. Baxter, had been brought into this Court by appeal, and had been continued from term to term till November term 1822, when Touro having deceased his death was suggested on the record, and had since been prosecuted in this…
1Opinion of the Court
Parker C. J.,
in giving the opinion of the Court, said in substance, it was clear that though the right of action survived against the executor of Touro, it would have been impossible to summon in the executor in the first action, for there would then have been defendants in different capacities, and the judgment must have been against one de bonis propriis and against the other de bonis testatoris.1 The question then is, whether the decease of Touro may be considered as a severance, so that the plaintiff may bring his action against the executor at the same time that the first suit is…
2Cases cited3 opinions
- Cutter v. WhittemoreMassachusetts Supreme Judicial Court · 1813
- Goelet v. M'KinstryNew York Supreme Court · 1800
- Nutt v. NuttMississippi Chancery Courts · 1844