Bush v. Hovey

Massachusetts Supreme Judicial Court

Bush v. Hovey

124 Mass. 217, 1878 Mass. LEXIS 274

CourtMassachusetts Supreme Judicial Court

DecidedMarch 13, 1878

StatusPublished

Cited by1 cases

This text of 124 Mass. 217 (Bush v. Hovey) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bush v. Hovey, 124 Mass. 217, 1878 Mass. LEXIS 274 (Mass. 1878).

Pincite

Opinion

Gray, C. J.

When the original judgment, rendered at January term 1875, was vacated, on the application of the petitioner at April term 1875, the liability of the obligors on the bond previously given to dissolve the attachment ceased. St. 1875, c. 33.

The St. of 1875, e. 68, which authorizes the court to enter a special judgment for the plaintiff to enable him to proceed against the sureties on a bond given to dissolve an attachment since the passage of this statute, and requires any such bond given since its passage to contain a condition that the sureties will pay the amount of such special judgment within thirty days after its entry, took effect before the original judgment was vacated. It was therefore within the power of the court to order such a bond to be given, as one of the terms of vacating the judgment. After a general judgment had been a second time rendered for the plaintiff in the original action, it was equally within the power of the court, upon the present petition for a review, to require a similar bond to be given as a condition to the allowance of a supersedeas of the execution issued on this judgment, it not appearing that the supersedeas, which would seem to have been issued by the clerk on the filing of this petition, had been so issued by order of the court.

The sole object of this petition for a review is to enable the petitioner to plead his discharge in bankruptcy. But, if a review should be granted, the original plaintiff would be entitled to a [219]*219special judgment to enable him to proceed against the sureties on the last bond. St. 1875, c. 68, § 3. And, as that bond was given since the commencement of the proceedings in bankruptcy, the discharge of the principal could not protect him from being liable to his sureties upon their paying the amount of that special judgment. No substantial benefit would enure to the petitioner from substituting, for a judgment against him directly, a judgment the amount of which he would be bound to repay to the sureties as soon as they had paid it; and the judge below might well decline to grant a review for such a purpose.

Exceptions overruled.

Free access — add to your briefcase to read the full text and ask questions with AI

Gray, C. J.

When the original judgment, rendered at January term 1875, was vacated, on the application of the petitioner at April term 1875, the liability of the obligors on the bond previously given to dissolve the attachment ceased. St. 1875, c. 33.

The St. of 1875, e. 68, which authorizes the court to enter a special judgment for the plaintiff to enable him to proceed against the sureties on a bond given to dissolve an attachment since the passage of this statute, and requires any such bond given since its passage to contain a condition that the sureties will pay the amount of such special judgment within thirty days after its entry, took effect before the original judgment was vacated. It was therefore within the power of the court to order such a bond to be given, as one of the terms of vacating the judgment. After a general judgment had been a second time rendered for the plaintiff in the original action, it was equally within the power of the court, upon the present petition for a review, to require a similar bond to be given as a condition to the allowance of a supersedeas of the execution issued on this judgment, it not appearing that the supersedeas, which would seem to have been issued by the clerk on the filing of this petition, had been so issued by order of the court.

The sole object of this petition for a review is to enable the petitioner to plead his discharge in bankruptcy. But, if a review should be granted, the original plaintiff would be entitled to a [219]*219special judgment to enable him to proceed against the sureties on the last bond. St. 1875, c. 68, § 3. And, as that bond was given since the commencement of the proceedings in bankruptcy, the discharge of the principal could not protect him from being liable to his sureties upon their paying the amount of that special judgment. No substantial benefit would enure to the petitioner from substituting, for a judgment against him directly, a judgment the amount of which he would be bound to repay to the sureties as soon as they had paid it; and the judge below might well decline to grant a review for such a purpose.

Exceptions overruled.

Cite This Page — Counsel Stack

Bluebook (online)

124 Mass. 217, 1878 Mass. LEXIS 274, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bush-v-hovey-mass-1878.

Opinion

Related

Cite This Page — Counsel Stack