#### Meriam Sanders, by Guardian, *versus*Lester Filley, Administrator of Juddimer Hubbard.

An action upon a bond made to A, conditioned for the support of B, cannot be maintained in the name of B.

Debt on a bond, made in 1795, by Juddimer Hubbard to William Morley, with condition that Hubbard shall support Morley and his wife and daughter (the plaintiff) during their respective lives. Pleas, *non est factum*and general performance.

At the trial, upon the production of the bond, it was objected by the defendant, that the action could not be sustained in the name of Meriam Sanders, but should have been brought in the name of the representative of the obligee. It was agreed that Morley and his wife are dead, and that there is an administrator on Morley’s estate now living in this Commonwealth. A nonsuit was entered by consent, subject to the opinion of the whole Court.

*Sept.*31».

*Dwight*and Jones, in support of the action,

cited 1 Chit. Pl. 4, 5, 6, 7 ; 3 Bos. & Pul. 149, note; *Shaw*v. *Sher*wood, Cro. Eliz. 729 ; *Whorewood*v. *Shaw, (S. C.)*Yelv. 25 ; *Felton*v. Dickinson, 10 Mass. R. 287 ; *Fisher*v. *Ellis,*3 Pick. 322; *Arnold*v. *Lyman,*17 Mass. R. 400 ; *Cabot*v. *Haskins,*3 Pick. 92; Yelv. (Metcalf’s edit.) 177, note; *Dutton*v. *Poole,*1 Vent. 318, 332; *Cooker*v. *Child,*2 Lev. 74 ; *Gilby*v. *Copley,*3 Lev. 138.

*C. A. Dewey*and *Filley, contra,*

cited *Watson*v. *Cambridge,*15 Mass. R. 290 ; *Sanford*v. *Sanford,*2 Day, 560 ; *Montague*v. *Smith,*13 Mass. R. 405; 1 Chit. Pl. 45 ; Yelv. (Metcalf’s edit.) 25, note, and 177, note; *Storer*v. *Gordon,*3 Maule & Selw. 308, 322; *Banford*v. *Stuckey,*2 Brod. & Bingh. 333.

*Sept.*22a1.

*Per Curiam.*

The bond on which this action is founded was made to William Morley, the father of the plaintiff; and t is admitted that he has deceased, and that a person other than the plaintiff has been appointed administrator on his estate.

*562This is an action of debt, for the penalty of the bond ; it is strictly a legal action, and brought to .enforce a legal right. The penalty is one entire thing, and can only be claimed by the obligee or his legal representative. We think it very clear that the action cannot be maintained by the plaintiff. Cases of assumpsit, where a legal liability raises an implied promise, do not apply. This arises from specialty, depends upon express obligation, and, by force of the bond, the legal right vests exclusively in the legal representative of the obligee, upon his decease.

Whether, in equity, the condition of this bond may be deemed an agreement in which this plaintiff has a beneficial interest, for the specific performance of which she may have a remedy in equity ; or, whether she stands in the relation of one having a beneficial interest in a legal contract, which she would be protected in enforcing by a suit at law, in the name of the administrator of the obligee, are questions upon which we give no opinion, and they are alluded to only in connexion with the suggestion, that the plaintiff would be wholly without remedy, if this action cannot be maintained. It may be so ; but if it were, although it would induce the Court to examine the proposed remedy with great care and with a disposition to favor it, still it would afford no ground for deciding that a legal remedy exists, where it is clearly opposed to settled rules of law.

*Nonsuit to stand.*