
    Fuller vs. Fullerton and others.
    An action upon the official bond of a town superintendent of common schools must be brought in the name of the supervisor, to whom the same was given, or to his successor in office. It cannot be brought in the name of a subsequent town superintendent of schools.
    This was an action commenced by the plaintiff as superintendent of common schools in the town of Athol, before a justice of the peace of Warren county. The complaint averred that at the annual town meeting in the the town of Athol, in said county, in April, 1847, Edward Fullerton, one of the defendants, was duly elected superintendent of common schools of said town of Athol, and that afterwards, on the 12th of April, 1847, for the purpose of enabling him to enter upon the duties of his office, he as superintendent, and the other defendants as sureties, executed a bond or writing obligatory, (then) on file in the town clerk’s office of Athol, to the. supervisor of said town of Athol, David M. Cameron, conditioned for the faithful application and legal disbursement of all the school moneys coming into his (Fullerton’s) hands as such town superintendent during his term of office. The complaint further alledged, that Fullerton, as such town superintendent, received into his hands a large sum of money, which he had neglected and refused to apply and disburse, and that the plaintiff, as his successor in office, was the legal owner of the bond, and brought this action on said bond in his own name, and demanded of the defendant the sum of $100, being the amount of money not disbursed or paid over by Fullerton. The defendants in their answer objected, in the first place, that the action was not maintainable in the name of the superintendent, and that it should have been brought in the name of the supervisor, to whom the bond was given, or to his successor in office, the then supervisor of the town. This was overruled by the justice, and the defendants answered, setting up the statute of limitations, and denying each and every allegation in the complaint, and averring that they were npt liable for any moneys in the hands of Fullerton after the expiration of one year from the time of his election, or the date of the bond, and also that they gave notice to the supervisor and collector of the town not to pay over any money to Fullerton, before any money was paid over to him, as they would not be answerable for the faithful disbursement of any money by him. The plaintiff took issue on the answer of the statue of limitations, and denied that the other allegations in the answer were any defense to the action. On the trial of the cause it was admitted, that the money claimed was in Fullerton’s hands up to the first of May, 1848. The bond was produced, and the execution thereof proved. It was proved by Fullerton himself, that he was elected superin-
    
      
      Wm. Hay, for the respondents.
    
      Ira A. Paddock, for the appellants.
   By the Court, C. L. Allen, J.

[Franklin General Term,

July 5, 1852.

Willard, Hand, Cady and C. L. Allen, Justices.]

I regret to be under the necessity of coming to this conclusion, as the cause of action is clear, the town superintendent having made use of the money, which he should have appropriated in the manner recpiired by his duty, and the condition of his bond. There is nothing in the other objections taken by the defendants.

But as the action was misconceived, the judgment of the court below must be reversed.  