Mosher v. Murphy

• Decision Date: 20 November 1876
• Parties: Augustus Mosher v. Timothy C. Murphy
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

121 Mass. 276

Augustus Mosher v. Timothy C. Murphy

Supreme Court of Massachusetts

November 20, 1876

Bristol. Contract on the following bond executed by John Doherty, as principal, and by Dennis Garvey and the defendant, as sureties:

"Know all men by these presents, that we, John Doherty, of Fall River, in the county of Bristol, and Commonwealth of Massachusetts, as principal, and Dennis Garvey and Timothy C Murphy, of said Fall River, as sureties, are holden and stand firmly bound and obliged unto Augustus Mosher of Fall River in the county of Bristol, and Commonwealth aforesaid, in the full and just sum of six hundred dollars, to be paid unto said Mosher, his executors, administrators or assigns; to which payment, well and truly to be made, we bind ourselves our heirs, executors and administrators, jointly and severally, firmly by these presents. Sealed with our seals. Dated the eighth day of May, in the year of our Lord one thousand eight hundred and seventy-five.

"The condition of this obligation is such, that whereas said Mosher has caused the goods and estate of said Doherty, to the value of three hundred dollars, to be attached on mesne process, in a civil action, by virtue of a writ, bearing date the thirtieth day of April, A. D. 1875, and returnable to the Second District Court of Bristol, to be holden at Fall River, within the county of Bristol, in said Commonwealth, on the fourth Monday of May instant; in which writ said Augustus Mosher is plaintiff, and said John Doherty is defendant; and whereas said defendant wishes to dissolve the said attachment, according to law. Now, therefore, if the above bounden Doherty shall pay to the plaintiff in said action, the amount, if any, which he shall recover therein, within thirty days after the final judgment in said action, then the above written obligation shall be null and void otherwise, to remain in full force and virtue."

The case was submitted to the Superior Court, and, after judgment for the plaintiff, to this court on appeal, on an agreed statement of facts, in substance as follows:

The attachment in the action mentioned in the bond was by the trustee process, in which the Fall River Bleachery was summoned as trustee of John Doherty. The bond was signed voluntarily by the defendant, and, upon the acceptance of the bond by the plaintiff, the trustee was discharged and the attachment dissolved voluntarily. Judgment was recovered against Doherty, and execution issued on the judgment. Doherty neglected to satisfy the execution and judgment within thirty days after recovery of judgment, and continued so to do.

If the defendant was liable, judgment was to be entered for the plaintiff for the amount of judgment and interest; otherwise, judgment for the defendant.

Judgment for the plaintiff.

A. N. Lincoln, for the plaintiff.

H. K. Braley, for the defendant.

Colt J. Devens & Lord, JJ., absent.

OPINION

Colt, J.

The St. of 1875, c. 68, § 2, declares that no bond shall be given to dissolve an attachment, which does not contain a condition obliging the sureties to pay the special judgment, which by the first section is provided for, in order to...