Prior v. Pye

• Decision Date: 02 October 1895
• Citation: 41 N.E. 353,164 Mass. 316
• Parties: PRIOR et al. v. PYE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

164 Mass. 316

41 N.E. 353

PRIOR et al. v. PYE et al.

Supreme Judicial Court of Massachusetts, Suffolk.

October 2, 1895

COUNSEL

J.C. Sharkey, for plaintiffs.

O.A. Marden, for defendants.

OPINION

LATHROP, J.

The liability of the defendants in this case depends upon the contract which they have made. The condition of the bond recites the attachment of the goods of Henry E. Holbrook in an action brought by the plaintiffs against Henry E. Holbrook and W.C. Holbrook, and the wish of Henry E. Holbrook to dissolve the attachment according to law; and binds him to pay within 30 days the final judgment "in the aforesaid action." If the judgment is paid, the obligation is to be void; otherwise the principal and sureties on the bond are liable. It seems to us impossible to say that this bond can be construed to mean a promise to pay only on a judgment against Henry E. Holbrook. The case cannot be distinguished from Campbell v. Brown, 121 Mass. 516, which resembles it in every particular except in the fact that in that case the property of both defendants was attached. In Eveleth v. Burnham, 108 Mass. 374, the bond, in reciting the title of the action, only stated the name of the plaintiff and that of the defendant whose property was attached; and the promise to pay the amount recovered in such action was held to apply only to a judgment against this defendant. The case of Walker v. Dresser, 110 Mass. 350, was decided on the grounds that the action, being against the maker and guarantor of a promissory note, required separate judgments; and that the bond referred to a "judgment" only, and not "judgments," meant a judgment against the obligor in the bond. Since the statutes of 1871, c. 114 (Pub.St. c. 161, § 129), if the individual property of one defendant is attached in an action against several defendants, he may dissolve the attachment, "but the bond to dissolve such attachment shall be so conditioned as to apply only to a judgment recovered against such defendant alone or jointly." If the sureties in the case at bar wished to escape liability for a judgment against either defendants, they should have seen to it that the bond was drawn under Pub.St. c. 161, § 1296. See Leonard v. Speidel, 104 Mass. 356, 360; Poole v. Dyer, 123 Mass. 363; Dalton v. Barnard, 150 Mass. 473, 475, 23 N.E. 218. Judgment for the plaintiffs.