113 Mass. 268 | Mass. | 1873
When bonds varying in some respects from the requirements of statutes have been given, there has been always a strong disposition to hold them to be good at common law, if the parties to the instrument were right, and if the bond was in substance that which the obligors had a right to make, and contained no conditions contrary to those which were prescribed by law. Thus in Freeman v. Davis, 7 Mass. 200, and in Burroughs v. Lowder, 8 Mass. 373, bonds given by defendants to plaintiffs for the privilege of the prison limits to the principal were held good at common law, although not in double the amount of the debt as required by statute, and in the latter of these cases the bond was so held, although the sureties were not residents of the comity, which was also required by statute. The court say therein “ that there is no reason why the bond, should not be held good at common law, it having been voluntarily entered into for the benefit of the principal, to procure a relaxation of a lawful imprisonment, to which he could not be entitled without giving the bond.”
So, where a bond was given by a town treasurer and collector of taxes to the selectmen of the town for the faithful performance of his official duties, the statute requiring such bond to be given to the town, it was held that such bond was valid by the common
Where bonds have been required by law to be executed by sureties, it has been held in several instances that they were valid against the principal and one surety as bonds at common law, the surety entering voluntarily into the contract in this form.
It was provided by St. 23 H. VI. c. 9, that the sheriff should let to bail “ upon reasonable sureties of sufficient persons having sufficient within the county, which statute has been held to have been virtually adopted and made a part of the common law of Massachusetts, subject to such modifications as have been here introduced, and under this statute it has been settled both in England and this Commonwealth that a bail bond with one surety is not for that cause void, but may be enforced against the principal and such surety, although the sheriff himself may be subjected to eventual liability if the surety taken should not have sufficient to respond. Glezen v. Rood, 2 Met. 490, and cases cited.
In replevin, also, the law providing that upon the service of the writ the replevin bond shall be given with “ sufficient sureties ” to the defendant therein, it has been held that while the writ might be abated if it was promptly pleaded that a bond had been taken with only one surety, yet that the bond itself was not on that account void, but could be enforced against the plaintiff in replevin and such surety. It would be obviously unjust to the. defendant in such an action, if the plaintiff should obtain possession of goods, by means of a bond thus irregular in form, and should then be able to avoid it. Morse v. Hodsdon, 5 Mass. 314. Simonds v. Parker, 1 Met. 508. Wolcott v. Mead, 12 Met. 516. Claflin v. Thayer, 13 Gray, 459.
Applying these principles to the present case, we find that the principal defendant gave the bond in suit under the Gen. Sts. c. 72, § 4, by which it is provided that “the court or justice before whom the warrant is returnable may after due hearing require the accused to give bond, with sufficient sureties, to appear,” &c. The order of the magistrate permitted the principal “ to give surety or sureties,” and this bond was thereupon given, which in
