Martin v. Campbell

• Decision Date: 02 March 1876
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Lucy A. Martin v. Hugh C. Campbell & others

120 Mass. 126

Lucy A. Martin v. Hugh C. Campbell & others

Supreme Court of Massachusetts

March 2, 1876

Middlesex. Contract against Hugh C. Campbell, Ann Campbell his wife, and John McGrady, the first two defendants being the principals, and the last the surety, on a recognizance entered into before a justice of the peace to prosecute an appeal from his judgment in a case under the Gen. Sts. c 137. The principals were defaulted, and the surety alone defended.

At the trial in the Superior Court, before Pitman, J., the entering into the recognizance, the failure of the original defendants to prosecute their appeal, the affirmation of the judgment of the justice of the peace in the Superior Court, and the subsequent proceedings to fix the liability of the surety were all proved or admitted. It appeared that among the copies entered by the plaintiff with her complaint for the affirmation of judgment was the following paper:

"Commonwealth of Massachusetts. Middlesex, ss. Memorandum. That on the thirteenth day of April, in the year of our Lord one thousand eight hundred and seventy-four, H. C. Campbell, Ann Campbell and John McGrady, Junior, of that name, all of Stoneham, in the county of Middlesex, personally appeared before me Dexter Bucknam, a justice of the peace in and for the county of Middlesex, and acknowledged themselves to be severally indebted unto Lucy A. Martin, wife of Charles W. Martin, of Winchester, in said county, in the respective sums following, to wit: the said Ann Campbell, H. C. Campbell, as principals, in the sum of six hundred dollars, and the said John McGrady, Junior, as surety, in the sum of six hundred dollars, to be levied on their goods or chattels, lands or tenements, and in want thereof upon their bodies, to the use of the said Lucy A. Martin in her own right, if default be made in the performance of the condition hereunder written.

"The condition of the above written recognizance is such, that whereas the said Lucy A. Martin, by the consideration of me, the said justice, at a court held by me, in said Stoneham, on the eleventh day of April current, recovered judgment against the said Ann Campbell and H. C. Campbell for her title and possession in and to a certain piece of land, with the buildings thereon, situate on the easterly side of Colincote Road, in said Stoneham, and costs of suit, taxed at eight dollars and thirty-seven cents, in a personal action brought by said Lucy A. Martin against said Ann Campbell and H. C. Campbell, from which judgment said Ann Campbell and H. C. Campbell appealed to the next Superior Court, to be holden at Cambridge, within and for the county of Middlesex, on the first Monday of June next: Now if the said Ann Campbell and H. C. Campbell shall and do prosecute their said appeal at said Superior Court with effect, and pay all rent due and to become due, and all intervening damages and costs, then the above written recognizance to be void and of no effect; otherwise to abide in full force, power and virtue.

"Dexter Bucknam, Justice of the Peace.

"A true copy."

"Attest, Dexter Bucknam, Justice of the Peace."

This paper had remained on the files of the court with the other papers in the case. There was no other formal entry, estreatment or forfeiture of said recognizance than may appear from this recital. McGrady offered to show that he was deceived and fraudulently led, by others than the plaintiff, to enter into the recognizance aforesaid, supposing it to be a recognizance in a criminal case, and only for the appearance of the principal defendants; but the judge rejected the evidence as inadmissible.

The defendant thereupon asked the judge to rule that the recognizance was void, and that this action could not be maintained, upon these several grounds: "1. That the recognizance did not appear to have been duly returned to filed in and made a record of the court appealed to, and had not been duly estreated and forfeited. 2. That a husband and wife cannot be made joint principals in a recognizance. 3. That a recognizance, void as to principal, is void as to surety. 4. That the recognizance contains an obligation not warranted by the statute, and...