Day v. Frank
| Decision Date | 27 October 1879 |
| Citation | 127 Mass. 497 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | Hiram Day v. Henry Frank & another |
Hampshire. Contract by the treasurer of Northampton against the principal and surety upon a bond given by Henry Frank under the St. of 1875, c. 99, § 9, the condition of which was that Frank "shall well and truly comply with all the provisions of the act under which said license is issued, and also shall pay all damages which shall be recovered from him under and pursuant to the provisions of said act." The principal was defaulted.
At the trial against the surety in the Superior Court, before Gardner, J., without a jury, the plaintiff offered in evidence the record of a judgment recovered by one Ann Riley for whose benefit this action is brought, against Frank, for three violations of the provisions of § 15 of that statute. The defendant objected to the admission of this record. The judge admitted it; and the defendant excepted. No further evidence was offered by the plaintiff, except the bond in suit.
The defendant asked the judge to rule that the plaintiff was not entitled to recover. The judge declined so to rule; and ordered judgment for the plaintiff for the penal sum of the bond, execution to issue for $ 340.44, the amount of the judgment recovered by Riley against Frank. The surety alleged exceptions.
Exceptions overruled.
J. B Bottum, for the surety.
W. Slattery, for the plaintiff.
The statute provides that every person licensed to sell intoxicating liquor shall give a bond with sufficient surety or sureties "conditioned for the payment of all costs, damages and fines incurred by violation of the provisions of this act." St. 1875, c. 99, § 9. The same section provides a form of the bond, in which the condition is that the licensee "shall well and truly comply with all the provisions of the act under which said license is issued, and also shall pay all damages which shall be recovered from him under and pursuant to the provisions of said act."
The bond in suit follows the words of this form. The suit is brought by and for the benefit of one Ann Riley, who recovered a judgment in an action of tort against the licensee and principal obligor in the bond for three violations of the fifteenth section of the act, which provides that whoever shall sell or give intoxicating liquor to any minor "shall forfeit one hundred...
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O'Connell v. O'leary
...is a penalty. A penal statute, imposing a forfeiture, may be remedial in a certain sense. See Com. v. Fahey, 5 Cush. 408, 411. In Day v. Frank, 127 Mass. 497, it was held that bond of a licensee under St.1875, c. 99, § 9, (Pub.St. c. 100, § 13,) conditioned to pay all damages recovered unde......
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Taylor v. Carroll
...c. 100, §§ 24, 25. See cases cited; George v. Gobey, 128 Mass. 289; McNeil v. Collinson, Id. 313; Same v. Same, 130 Mass. 167;Day v. Frank, 127 Mass. 497;Roberge v. Burnham, 124 Mass. 277;Harrington v. McKillop, 132 Mass. 567. This action is unlike the one under section 21, which can be mai......
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State v. Nutter
...for forfeiture for keeping a tippling house, because the statute made it good therefore, though the bond did not mention them. In Day v. Frank, 127 Mass. 497, was "to pay all damages which may be recovered under the provisions of said act." Held good for judgment for selling to a minor. Bon......
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Inhabitants of Dexter v. Blackden
...between requiring prepayment of money and requiring security for the payment of money for damages if afterwards incurred. In Day v. Prank, 127 Mass. 497, a licensee was required to give a bond, with sureties, to pay all costs, fines, and damages recoverable against him under the Massachuset......