Tracy v. Howe

119 Mass. 228, 1875 Mass. LEXIS 125

Opinion

Ames, J.

The difficulty with the defence relied upon is that it contradicts the record of the court. By the terms of the bond, the principal obligor was bound to appear and abide the order of the court. He does not fulfil this obligation by merely entering an appearance and filing an answer, denying the charge against him. He is bound to be in court when the case is in order for trial, and his default, as entered of record, is conclusive proof of the fact that, although solemnly called, he did not appear. In this state of the case, it was impossible that the court could do otherwise than rule that there had been such a breach of the condition of the bond as to authorizes judgment for the plaintiff. McGrath v. Conway, 116 Mass. 360. As this is the only question raised by the defendants, the result must be that their

Exceptions are overruled.