Spear v. Thompson

1 Mo. 581

• Court: Supreme Court of Missouri
• Decided: November 15, 1825
• Status: Published

Opinion

Wash, J.,

delivered the opinion of the Court.

This was an action of covenant, commenced by the plaintiff in error against the defendants in error, in the Cape Girardeau Circuit Court, on an administration bond. The declaration sets out the bond and condition at length, which is in the form prescribed by the statute, and was executed “ to William Clark, Governor of the Territory of Missouri, or his successors in office,” &c., conditioned for the faithful administration of the estate, &c. The defendants demurred generally, and had judgment; to reverse which this writ of error is prosecuted. Several questions have been raised, only one of which need be now considered. That is, can the plaintiff, in his own name, sue on the bond executed to the Governor of Missouri? The words of the statute are, “ that the bond to be given by the administrator, &c., may be put in suit, and prosecuted from time to time, at the suit of the party injured, in the name of the Governor,” &c.

The plaintiff most manifestly had no right to sue in his own name, and the Circuit Court did right to sustain the demurrer.

Let the judgment be, therefore, affirmed with costs.