Hollister v. White

I am of opinion, that the select-men of Chatham cannot maintain an action on the bond in question. If the select-men for the time being liad a right to enter and prosecute the action, then the bond previously given to the woman would have enured to their benefit; they must have prosecuted the suit, and brought scire-fucias on the bond : for there is nothing in the law to warrant the idea, that the parties to the action are to be changed as often as the selectmen are changed ; or that a set of select-men different from those who entered and prosecuted the suit, can bring scire-facias on the bond.

But I apprehend, that the select-men of a town can never bring a suit on such bond. It is a reasonable construction of the statute to say, when a suit is brought for the maintenance of a bastard child, because the mother does not prosecute at all, or where one is taken up when the mother fails to prosecute a suit she has commenced, that it must be done in the name of the town where the child would he chargeable, by the select-men, as their agents, and not in (he name of the select-men only ; for it is the town that has an interest *341in the prosecution ; and the statute, by authorizing the select-men to bring forward or prosecute such suit in behalf of the town, constitutes them agents for that purpose, anil the suit must, of course, be in the name of the town; and here would be a permanent party, not changeable like the select-men of a town. If the suit must be in the name of the town, and the selectmen cannot enter or prosecute in their name, it follows necessarily, that they cannot bring scire-facias on the bond previously given to the mother of the bastard child.

I am of opinion that the judgment of the superior court be reversed.

J udgment reversed.