146 Mass. 58 | Mass. | 1888
The bond was not valid as a bail bond, since it ran directly to the plaintiff in the action, and not to the sheriff or other officer. Pub. Sts. c. 163, § 2. The approval of the master in chancery, therefore, signified nothing. But the bond might be valid at common law, if approved and accepted by the obligee. Pratt v. Gibbs, 9 Cush. 82. An actual or implied acceptance is essential, iii order to constitute a delivery. Hawkes v. Pike, 105 Mass. 560. Chase v. Breed, 5 Gray, 440. 4 Kent Com. 454. Met. Con. 14. In the present case, the plaintiff never authorized nor ratified the taking of the bond; on the other hand, he always repudiated it. Up to the time of the assignment, he obviously intended to do no act to accept or ratify it, and declared, by his counsel, that in any event he should hold the sheriff responsible for the judgment. He thus treated the bond as invalid at a time when, if valid, the sureties could and would have saved the condition by surrendering their principal. It was too late afterwards to make it valid and binding upon them by an act done without their consent and to their injury. Under the circumstances, the assignment of the bond to the sheriff, upon the payment by the sheriff of the amount of the judgment, could not have the effect to give vitality to a bond which up to that time was invalid. Exceptions overruled.
