
    Inhabitants of Farmington vs. Daniel P. Hobert and another.
    Franklin.
    Opinion February 16, 1883.
    
      Bond. Action. Parties to an action.
    
    ■When tlie contract is under seal, tlie legal title is in tlie obligee, and tlie action must be brought in liis name.
    A suit in the name of tlie town cannot be maintained on a bond running to the treasurer though for the use of the town.
    On exceptions.
    
      Debt on bond of Daniel P. Hobert and Joel llobert to " Louis Voter, treasurer of the town of Farmington,” plated March 10, 1873. The writ was dated April 18, 1878. The presiding justice ruled that the action could not be maintained and ordered that a nonsuit be entered, and the plaintiffs alleged exceptions.
    
      S. Clifford Belcher, for the plaintiffs.
    It is settled that a contract not under seal may be enforced by n town or corporation, though made with an officer thereof. .Wew Castle v. Bellard, 3 Maine, 369 ; Garland v. Reynolds, SO Maine, 45; Irish v. Webster, 5 Maine, 171.
    It is said that an action on a bond can be maintained at •common law only by the obligee or his legal representative.
    But in Fairfax v. Soule, 10 Vt. 154, it is held that an action may be sustained in the name of the inhabitants of the town on a bond given to the selectmen of the town. See Bradley v. Baldwin, 5 Conn. 288.
    In Ilqplcins v. Plainfield, 7 Conn. 286, wjiere a bond like the , one in suit was given the town treasurer, it was held that a bond given to the town treasurer, is iii law a bond to the town, and that a suit may be maintained on such a bond in the name of the inhabitants of the town.
    1'n this last case the aid of no statute was invoked, but the decision was based on the law, reason and justice.
    
      II. Belcher, for the defendants.
   Aupletox, C. J.

This is an action on a bond given to Louis Voter, treasurer of the town of Farmington, to indemnifi^ the town against the costs in certain suits pending against it.

At the trial at nisi pr ins, the presiding justice ordered a non-suit on the ground that the action should have been brought in the name of the obligee.

The contract was under se^l. In such case none but a party can maintain an action upon it. Flynn v. N. A. Life Ins. Co. 115 Mass. 449. The legal title is in the obligee, and the action must be in his name. When the bond is for the use of the town, but running to the commonwealth, no action can be maintained in the name of the town, though the forfeiture will accrue to its benefit. Inhabitants of North Hampton v. Elwell, 4 Gray, 81. An action on a contract with the warden of the state prison of Maine in his name, cannot be maintained in the name of the state. State of Maine v. Gould, 11 Met. 221.

Where the contract is by an agent or servant and not under seal, suits have been sustained in the name of the parties for whose use and benefit they were made. It is otherwise when they are under seal. Ministerial and School Fund v. Parks, 1 Fairf. 441; Garland v. Reynolds, 20 Maine, 45.

Nonsuit confirmed.

Barroívs, DaNfoeth, Virgin, Peters and Staionds, JJ., concurred.  