177 Mass. 301 | Mass. | 1901
This is an appeal from an order that judgment be entered and that execution issue in a suit against the maker of a promissory note, “ without the filing of the note declared on and now alleged to be lost, and without a bond of indemnity.” The only question is whether we can say that under no circumstances does a judge of the Superior Court have power to make such an order, for as the record discloses nothing beyond the fact that the order was passed, it must stand unless it is ultra vires on its face.
Manifestly we cannot deny the power of the judge. Filing the note and giving a bond of indemnity are simply means of making the defendant reasonably safe. Fales v. Russell, 16 Pick. 315, 317, 318. Schmidt v. People’s National Bank, 153 Mass. 550, 552. When the note is lost when overdue and after the trial, it may appear clearly to the court that no bond is necessary to the defendant’s safety. See 2 Dan. Keg. Instr. (4th ed.) §§ 1478,1481. We need not go so far even as that. If the defendant’s contention were right, the judge could not have made this order if with his own eyes he had seen the defendant put the note into the fire.
The argument for the defendant hinted at an obstacle in the rules of the Superior Court, but did not venture to press the suggestion. Rule 56, which requires the filing of all papers necessary to enable the clerk to make up and enter the judgment etc., of course does not purport to make it impossible to recover on a lost note, and has no bearing on the question whether a bond of indemnity shall be filed.
Judgment affirmed.