Collins B. Warner v. Jesse Howard &Amp; Others

• Citation: 121 Mass. 82
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Decision Date: 21 October 1876
• Parties: Collins B. Warner v. Jesse Howard & others

121 Mass. 82

Collins B. Warner v. Jesse Howard & others

Supreme Court of Massachusetts

October 21, 1876

Berkshire. Contract upon the following recognizance under seal "Commonwealth of Massachusetts. Berkshire, ss. Be it remembered that on the seventh day of April, in the year of our Lord eighteen hundred and seventy-three, personally appeared before me, Joseph Tucker, Esq., Justice of the District Court of Central Berkshire, holden at Pittsfield, in said county, Sidney A. Luce as principal, and Jesse Howard and Horace A. Hibbard as sureties, and acknowledged themselves to be jointly and severally indebted unto Collins B. Warner, in such a sum as shall cover the conditions of this recognizance, to be levied on their several goods or chattels, lands or tenements, and in want thereof, upon their bodies, to the use of the said Collins B. Warner, if default be made in the performance of the condition hereunder written.

"The condition of the above written recognizance is such, that the above named Sidney A. Luce, principal, shall prosecute with effect an appeal by him made from a judgment given by me, the said justice, against him, at a term of said court, held before me at said Pittsfield, on the fifth day of April 1873, in favor of the said Collins B. Warner, and shall pay all rent now due, all intervening rent, and all damages and loss which said Collins B. Warner may sustain by the withholding of the premises, and by any injury done thereto during such withholding, together with all costs, until the restitution of the premises to the plaintiff in case the judgment from which this appeal is taken is affirmed, then this recognizance is void, otherwise in full force."

"Witness Joseph Tucker, Esquire, at said Pittsfield, this seventh day of April, in the year of our Lord eighteen hundred and seventy-three. Walter B. Smith, Clerk."

The defendants demurred to the declaration on the ground that the recognizance was invalid because it was not "for a certain or definite sum, or for any penal sum."

The demurrer was sustained in the Superior Court, and judgment ordered for the defendants; and the plaintiff appealed to this court.

Judgment for defendants affirmed.

J. M Barker, for the defendants.

E. M. Wood, for the plaintiff.

Devens, J. Colt, Morton & Endicott, JJ., absent.

OPINION

Devens, J.

While by the Rev. Sts. c. 104, § 10, it is provided that in cases similar to the present the defendant "shall recognize to the plaintiff with sufficient surety or sureties not only to enter the action, but also to pay all rent then due and all intervening rent, damages and costs," the words "in such reasonable sum as the court shall order," which existed in the St. of 1825, c. 89, § 2, from which this provision is taken, are omitted. There is a...