139 Mass. 356 | Mass. | 1885
In our view the bond in suit was a new bond, under the Gen. Sts. c. 101, § 16, which provides that “ any surety
Joseph A. White had petitioned to be discharged, and due notice of such petition had been given; but, at the moment when the approval of the bond was written upon the second bond by the judge, the discharge had not been granted. He was immediately discharged from all further liability by a decree rendered upon the approval of the second bond. It does not appear that there was any interval of time between the two acts done by the judge of probate, one instantly succeeding the other, so far as is shown by the facts agreed.
The defendants contend that the second bond cannot be construed as a “ new bond ” within the meaning of the statute, as, at the time when it was actually approved, the sureties in the prior bond had not been discharged. It would have been according to the regular form contemplated by the statute for the judge of probate to enter a decree discharging the surety upon the filing and approving of a new bond, and thereafter to approve the new bond. But when two acts forming parts of but a single transaction are done as nearly contemporaneously as the sequence of incidents will allow, it is not unjust that they should be held to have been done in the order in which the parties intended they should occur. Haven v. Foster, 14 Pick. 534, 548. Pomeroy v. Latting, 15 Gray, 435. That the object of the transaction was to discharge White as surety, is apparent without reference to the extrinsic evidence on the subject.
The bond was in terms approved as an “ additional ” bond by the judge of probate. What is now termed an “ additional ” bond was not known as such, eo nomine, until long after this bond was given. St. 1880, c. 152. The judge of probate had at the time authority by statute to take new bonds only when the sureties in the original bond were found to be insufficient, or when a surety had been discharged from further responsibility upon petition to the Probate Court. Gen. Sts. o. 101, §§ 15,16. It was under the latter authority that the judge intended to act;
While the statute did not provide for bonds giving additional security, they were known to our practice, and had been held valid, at common law, as contracts voluntarily entered into, upon sufficient consideration, for purposes not contrary to law, and therefore obligatory on the parties, in like manner as any other contract or agreement is held valid at common law. Loring v. Bacon, 3 Cush. 465. Brighton Bank v. Smith, 5 Allen, 413, 415. Sweetser v. Hay, 2 Gray, 49.
The defendants further contend, that the bond in suit was not provided for by any statute, and that, if treated as valid at common law, the sureties became co-sureties with those upon the prior bond; that the discharge of White, a surety upon the prior bond, discharged not only him and the estate of his co-surety on the prior bond, but also the defendants, the sureties on the second bond, as they were thus deprived of their right of contribution from the sureties on the prior bond. McKim v. Demmon, 130 Mass. 404. This argument assumes that White was discharged without the assent of the sureties on the second bond. But if we accept the contention of the plaintiff, that this bond was only a common law bond, the object of the whole transaction is shown to have been the discharge of White; and of this the sureties on the second bond have no right to complain, whatever its effect may have been on the liabilities of others.
Judgment for the plaintiff.