Wall v. Kelly

• Decision Date: 22 June 1911
• Citation: 209 Mass. 370,95 N.E. 858
• Parties: WALL v. KELLY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

209 Mass. 370

95 N.E. 858

WALL v. KELLY.

Supreme Judicial Court of Massachusetts, Suffolk.

June 22, 1911

COUNSEL

E. W. Philbrick, for plaintiff.

Arthur Berenson, Bernard Berenson, and Francis P. Garland, for defendant.

OPINION

BRALEY J.

The real estate of the plaintiff's assignor having been attached by the defendant as a deputy sheriff, the debtor desired to release the attachment, and offered in substitution a sum of money somewhat in excess of the debt demanded. By agreement of parties supplementary process issued under Rev. Laws, c. 167, § 80, and the amount agreed upon having been deposited with the defendant, he attached it, and the plaintiff's counsel then released the attachment on the real estate. The debtor subsequently sought to dissolve the attachment on the money, and gave a bond on which the present plaintiff became surety, and made an assignment of the deposit to him as security. It is, however unnecessary to consider the effect of this bond, for the defendant having refused to surrender the money, a second bond was given on which the plaintiff relies as having worked a dissolution of the attachment. By Rev. Laws, c. 167, § 121 the condition of the bond should be to pay to the plaintiff within 30 days after the recovery of a special or final judgment, the value of the property released which should be described in the bond. If this requirement had been complied with, the attachment would have been dissolved by force of the statute without the creditor's consent, as the sureties were duly approved by a master in chancery, and the bond had been filed with the clerk of the court from which the writ issued. Rev. Laws, c. 167, §§ 119, 121; O'Hare v. Downing, 130 Mass. 16.

But as the condition inserted was to pay unconditionally the amount of any final or special judgment, and the penal sum not having been double the amount of the damages demanded in the writ, the defendant contends, that the bond was invalid. The creditor, however, voluntarily could consent upon tender of the bond to accept it as security for his debt, and dissolve the attachment which covered only the money in the hands of the officer. If he consented, the bond having been delivered to the officer and retained, was enforceable at common law and the money should have been surrendered to the debtor, or the plaintiff as his assignee. Mosher v. Murphy, 121 Mass. 276; Smith v. Meegan, 122 Mass. 6; Central Mills v. Stewart, 133 Mass. 461; Farr v. Rouillard, 172 Mass. 303, 52 N.E. 443. See Berry v. Wasserman, 179 Mass. 537, 540, 61 N.E. 228. It is unnecessary that his consent should be shown by proof of an express acquiescence and acceptance, but it may be implied from either the declarations and conduct of himself or...