The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-06-12
Superior Court-GeneraL Term.
Before Chen Justice Oakley and Judges Campbsl a


Edcard Basgsa ~. Ann Boular and Margarcl Boul
GER Ercussaes Of John Boug, decsdsed ct ais Big the
Court Bosworth Ut is objected that the plaintiff has
Improperly joined the action tho surviving oblgor aud
the Of their deceased obigor
The facts which the objection based appear upou this
face Of the complaint If the objection sup posed to
st is that several eau es Of action are Improperly united
the only mode by which advantage could be taken Of 1t
BY demurrer Code IA l67 aud l48 Ii not
taken in this action The only effect Of emitting to
present 10 executor administrator claim against
the testator interstate, within the six months
prescribed by "a Of r. s., p. So. il to limit
the recovery in suit subsequently, brought by such
q creditor TO the amount Of such assets may
be in the hands OF the administrator executor
at the time such suit is commenced, and to deprive
him OF all right TO costs. q. R. s. so, secs
So 40 Az The right Of action is not barred where the
claim sot presented At all but only where IL pre-
seutsd ana disputed or and neither referred nor
prosecuted within six months af being disputed
ected (Sectors 49, 80 40 The intatory proc.ed
ngs betoie the Surrogate to compel Ann Baggott
appear and render aseount conoImed TO the statute
She appeared and her account aud such pro-
ceedngs had that he made directing her
pay on account Of the assets she had received certain
sum to the plaintiffs. She appealed to the Supreme
Court and that court affirmed the decree The judgment Of
the Supreme Court remains in full force and effect and the
Surrogate in obedience to the mandate of that Court de-
creed she should pay the originally decreed to DO
paid with interest and costs. We have doubt that
rmance by the Supreme Court and estopped from
alleging any or effect in the before the
Surrogate Whsnever any order is made by Surrogate
able by bin, which concludes the administrator.
the suieties of the latter also concluded by It,
This is than bond Of indemnity The condi-
ton of it that their principal sh I'll obey s orders of
the Surrogate of the city of New York touching the ad
rnnisuaton the estate committed to her. It is equi
valept to pay all judgments that may be recovered
aga,nst her for spscibed The making of the
der for prepayment certain sum, and refusal to pay
the recovery Of Judgment and non payment. give an
cludes the surety covenant or until impeached and
avoided for fraud. (Chsce VS.. Kinman 8 Wend ASP;
Rockefeller Denrelly Cowen, 628; Jackson Girls
void Hill, b32, The People FalcoDer Sand. s. G.
R. 81 There is no attempt to impeach and avoid the
Surrogate for fraud There attempt to impeach its
intrinsic justice. The objection that the Surrogate's
order of May A. 1850 did not constitute the assignment
Of the bond contemplated by the statute, think
Bond. and in the nature Of things could execute
an assignment as An obligor may. He commonly
acts BY order, and the order, BY its terms assigns
il for the purpose Of being prosecuted This is, in
substance and effect, the only assignment contsm.
plated BY the statute Notwithstanding the assignment
persons having claims against the estate The assign
meat contemplated by the natute is in effect only the
grant Of permission or authority to prosecute the bond
We objections to the action being brought in the
name OF the plaintiff 1t useless proceeding to bring 1t
the name Of the people on the relation OF Edward Bag
gott Whether sued in the Of the party for whose
benefit it is ordered to be prosecuted in the Of
the people, the same facts to be stated the same
qnsnces the either to the sureties. Tho
common Law rule, that an action on q bond must BE-
is abrogaed by the code It must be brought
in the name Of the zeal party in Code, Sec III
S. sec 47o title chap. s part 5; Code sec 47l)
The plaintiff is the real and this only party in interest
prosecuting tho action The Code says that he may
in his II defect, it is defect Of parties,
the defect being, not that his appears party,
but that the people not named with him the par
ties prosecuting his relation This defect IL it b
enc. appears the face OF the conn plant, and
is not objec cd to by demurrer. Code, sec 144)
We in the opinion that the plaintiff is entitled to
judgment the verdict. The claim not having bsea
presented to the Defendant, required by Sec 81 Of
R. the plsint is not entitled to costs to be col
eced Of the estate Of John Bouger deceased from
his executives pc, sonally. CIR s. 90 Al Code
3l7) judgment will be entered in proper form for the
amount Of the VERDICT against Margaret Bouger and Am
Bou)ssr, executIixes