Bradford v. Rowe

20 Mass. 17

Opinion

Parker C. J.,

in giving the opinion of the Court, aaiu the statute provides only that the successor may be admitted, not that he shall be compelled, to prosecute the suit, and it is very clear that he was not bound to come into court and expose himself to a judgment. No action against the warden is given by the statute, and none would lie against him upon the contract, because he avowedly contracts as a public officer. Hodgson v. Dexter, 1 Cranch, 363 ; Macbeath v. Haldimand, 1 T. R. 172.1 The expression in the statute, that the suit shall not abate, taken in connexion with the rest of the section, must mean that the defendant shall not have the suit abated when the successor wishes to proceed in the prosecution. The defendant’s remedy for his costs must be by an application to the legislature.

In answer to a question by counsel, whether the executor of the deceased warden might not be liable, the Chief Justice said the Court had considered that point and they were of opinion that he was not liable. According to the statute none but the successor can have any relation to the contract.

Action dismissed.

Footnotes

•

Freeman v. Otis, 9 Mass. R. 272; Dawes v. Jackson, 9 Mass. R. 490; Brown v. Austin, 1 Mass. R. 208; Walker v. Swartwout, 12 Johns. R. 444; Allen v. Waldegrave, 8 Taunt. 566; Gidley v. Palmerston, 7 Moore, 91; Rathbon v. Budlong, 15 Johns. R. 1; Adams v. Whittlesey, 3 Connect. R. 560; Stinchfield v. Little, 1 Greenl. 231; Hovey v. Magill, 2 Connect. R. 680: Mann T. Chandler, 9 Mass. R. 335.