Donnell v. Manson

109 Mass. 576

Opinion

Mobton, J.

This is an action upon a bond given to dissolve an attachment under the Gen. Sts. c. 151, § 15.

Footnotes

•

* After the bond was executed two of the obligees died, and the action is brought by the surviving obligees. The defendants object that the suit cannot be maintained without joining the executors or administrators of the deceased obligees. But the contract of the defendants is with the obligees jointly; the form of the contract is joint and the legal interest in the subject matter of the contract is vested in them jointly. When this is the case the survivors are the proper parties to sue. Anderson v. Martindale, 1 East, 497. Rolls v. Yate, Yelv. 177 (Am. ed.) & notes. Stowell v. Drake, 3 Zab. 310. Smith v. Franklin, 1 Mass. 480.

The defendants object that no breach of the condition of the bond is shown. It is admitted that the only action pending in the superior court in favor of the obligees as plaintiffs against these defendants, is an action to enforce the plaintiffs’ liens against the steamer Starlight, in which Spear, Manson and Harding are made defendants. The description in the condition of the bond identifies this as the action referred to therein, by the parties and by the date and return day of the writ. It can apply to no other action, and it is found in the facts agreed that this bond was given to dissolve an attachment of the steamer Starlight made in that action. The breach of the condition claimed by the plaintiffs is that the defendants have not paid the amount recovered in said action within thirty days after the final judgment therein. The facts agreed prove this breach. They show that on May 26, 1870, the superior court rendered a judgment in said action' establishing the liens claimed, decreeing a sale of the steamer, and adjudicating the amounts due and owing to the several plaintiffs upon the causes of action stated in their petition. This was “ the final judgment in said action ” within the meaning of the condition of the bond in suit, and the failure of the defendants to pay the amount recovered therein within thirty days after its rendition, was a breach of said condition. The objection that this judgment is not admissible under the declaration, because it is not a joint judgment in favor of all the plaintiffs, cannot prevail. Although the judgment fixes the amount due to each plaintiff, it is a joint judgment against the vessel and the defendants therein. The costs are taxed jointly and only one execution was or could be issued to enforce it. Upon the whole case we are unable to see any defence to the plaintiffs’ claim.

Judgment for the plaintiffs.

“ Such lien may he enforced by petition to the superior court for the county where the vessel was at the time the debt was contracted cir in which she is at the time of instituting proceedings. The petition may he entered in court or filed in the clerk’s office in vacation, or may he inserted in a writ of original summons, with an order of attachment, and served, returned, and entered as other civil actions, and the subsequent proceedings for enforcing the lien shall, except as hereinafter provided, be as prescribed in chapter one hundred and fifty for enforcing liens on buildings and land, so far as the same are applicable. At the time of entering or filing the petition, a process of attachment against such ship or vessel, her tackle, apparel, and furniture, shall issue and continue in force, or may be lissolved like attachments in civil cases, but such dissolution shall not dissolve the lien.”