Hewes v. Cooper

115 Mass. 42, 1874 Mass. LEXIS 141

Opinion

Ames, J.

The insertion of the creditor’s name in the condition of the bond, in the place intended for that of the original debtor, thereby requiring literally that the creditor should pay to himself the amount of a judgment which he should recover against the other party in the suit, was a manifest clerical error, which will not vitiate the bond or defeat the intention of the .parties, provided that intent can be distinctly ascertained from the entire instrument. The erroneous name may be stricken out. Leonard v. Speidel, 104 Mass. 356.

An imperfect recital of the preliminary facts, which is correct as far as it goes, provided it describes correctly the suit to which the bond applies, and states with substantial accuracy the condition which is to be fulfilled, will not defeat the creditor’s remedy in a suit on the bond. For this reason the omission in the bond to designate the ownership of the attached property is immaterial. The bond is substantially in conformity to the provisions of the statute. Exceptions sustained.