Barnes v. Chase

128 Mass. 211, 1880 Mass. LEXIS 41

Opinion

Endicott, J.

The sureties on the bond could not be held liable for more than the penal sum named in the bond, but that sum was not the limit of the liability of the principal. He was bound to pay, according to the order of the court, “ one hundred dollars in gross forthwith, and two dollars a week afterwards, payable quarterly, till further order.” No other order appears to have been passed, and the bond stood as security for such payment. So long as Norton complied with the terms of the order, the sureties were not liable. When he failed to comply, there was a breach of the bond, and the plaintiff was entitled to judgment for the penalty of the bond. In what sum execution should issue would depend upon the amount due under the order which had not been paid. What portion had been paid by Norton in obedience to the order could not be deducted from the penalty of the bond. The presiding judge found that there was a breach of the bond, upon which judgment should be entered for the penal sum named. He therefore properly decided that the amount for which execution should issue was the sum due under the order which the principal had failed to pay.

Exceptions overruled.