Bickford v. Ellis

50 Me. 121

• Court: Supreme Judicial Court of Maine
• Decided: July 1, 1862
• Status: Published

Opinion

The facts essential to an understanding of the case appear from the opinion of the Court, which was drawn up by

Cutting, J.

Action of debt on a bond, given in pursuanee of the requirements of E. S., c. 97, relating to "bastard children and their maintenance.”

It appears that judgment had been rendered against the putative father, the principal in the bond, for the maintenance of his illegitimate child with costs of prosecution; — that John 8. Abbott, Esq., appeared as senior counsel for the plaintiff in that prosecution, who now in the present action claims at least a judgment for the amount of his lien, it being for fees and disbursements, embraced in the costs of the former judgment.

That he had a lien on that judgment cannot be controverted ; neither can it be denied that his remedy embraces all prior legal contracts to secure its enforcement, which cannot be annulled without his consent as a party, perhaps, the most deeply interested. See Newbert v. Cunningham, post.

But it appears, that after this suit was commenced, the plaintiff discharged the sureties, who are two of these defendants ; which act as to her would operate as a release of the principal, inasmuch as they covenanted jointly, and the declaration is framed accordingly; consequently she, perhaps unadvisedly, has lost her remedy.

But not so as to her counsel, who must recover. judgment against all the defendants, to the amount of his lien claim, which is to be ascertained at Nisi Prius, as agreed by the parties. Defendants defaulted.

Appleton, C. J., Davis, Walton and Barrows, JJ., concurred.