Campbell v. Brown

121 Mass. 516, 1877 Mass. LEXIS 34

• Court: Massachusetts Supreme Judicial Court
• Decided: January 22, 1877
• Status: Published

Opinion

Devens, J.

The condition of the bond in suit recites an action brought by the plaintiffs against Brown and Murphy, in which their goods and estate are attached to the amount of one thousand dollars, and the wish of the defendant Brown “ to dissolve said attachment,” and binds him to pay to the plaintiff in said action the amount if any which he shall recover therein. By its proper construction, the bond rendered the obligors liable to pay any judgment which the plaintiffs might recover, whether against Brown or Murphy, or both. No circumstances were shown, indicating that it was intended to be binding only in case of a judgment against the principal giving it, (such as have been found in some other cases,) which could modify the effect of the language used. Eveleth v. Burnham, 108 Mass. 374. Walker v. Dresser, 110 Mass. 350. If Brown had desired to release only his own property from attachment, and to escape liability upon any judgment against his co-defendant alone, he should have given a bond to secure only such judgment as might be recovered against himself. Leonard v. Speidel, 104 Mass. 356.

It is argued that the bond as given is not in conformity with the Gen. Sts. e. 123, § 104, as it was not signed by the co-defendant Murphy, that it is not properly a part-owner’s bond under the Gen. Sts. o. 123, §§ 87, 88, and that it is therefore void. Whether the bond was in strict conformity with either of these statutes, and whether upon its delivery Brown could have demanded the release of the vessel, need not be discussed. Upon the agreed facts it appears that Brown and Murphy owned the vessel together (each owning one half thereof) which was attached in the suit against both, and that, “ for the purpose of releasing the vessel from the attachment, the bond in suit was given by said Brown as principal, and the other defendants as sureties, and, on the execution and delivery of the bond, the vessel was so released from attachment.” It was a bond given for a lawful purpose, the consideration of which has been received, and the defendants cannot now object that, before Brown was entitled to demand the release of the vessel, something more or additional might have been required from him or his co-defendant. Mosher v. Murphy, ante, 276.

The breach of the bond being complete after the expiration of thirty days from the date of the judgment without payment thereof, no demand was necessary before suit was brought. Wright v. Quirk, 105 Mass, 44.

Judgment for plaintiff affirmed.