122 Mass. 176 | Mass. | 1877
The first objection made at the trial was that the action could not be maintained, because the declaration did not allege that the bond was executed by Lucretia W. Martin. But the bond being several as well as joint, it would be sufficient at common law, in an action against one obligor, to allege that it was executed by him. 1 Chit. Pl. (16th Am. ed.) 51. Our practice act was intended to simplify the forms of pleading, and has made no change in this respect. The objection is not to the sufficiency of the evidence to support an action; (as in the case of Tarbell v. Gray, 4 Gray, 444, cited by the defendant;) for the bond produced, with the testimony of the subscribing witness, was sufficient proof of its execution by all the obligors. Valentine v. Wheeler, 116 Mass. 478. The objection is merely to the form of the declaration, and could not be taken otherwise than by demurrer, by plea in abatement, or by specific allegation in the answer, corresponding to a special plea in bar at common law. Gen. Sts. c. 129, §§ 11, 13, 15. Not having been so pleaded or demurred to, it was not open to the defendant at the trial. Huntress v. Burbank, 111 Mass. 213.
The other objections relate to the validity and effect of the final judgment against Martin in the original action.
It was argued that the court had no power to enter that judgment, because the plea of a discharge in bankruptcy under the act of Congress presented issues of law and fact, which must be tried by the court and jury before final judgment could be rendered. But it is within the legitimate and familiar exercise of the power of the court to enter a judgment nune pro tune as of the term at which the verdict was returned, in order to prevent the plaintiff from being deprived of his rights by the death of the defendant, or even by an alteration in the statutes, while the exceptions are pending. Gen. Sts. c. 115, § 14. Springfield v. Worcester, 2 Cush. 52. Emery v. Parrott, 107 Mass. 95. Tapley v. Martin, 116 Mass. 275. The power existing, the question whether it should be exercised in the particular case was within the discretion of the presiding judge.
It was further objected that the order for judgment was void, because it was passed in vacation. But by the exemplification of the record, produced by the plaintiff, it would appear to have been made at a regular term. And if we take into considera
It was finally argued, that the sureties could not be charged, because they were not parties to the action in which the judgment nunc pro tune was rendered, and could not be in default by reason of not paying for thirty days after its date the amount of a judgment, which had no actual existence until long after the thirty days had expired.
But a surety on a bond to dissolve an attachment does not stand upon the footing of a stranger to the action. The very purpose, as well as the tenor, of his obligation, is to secure the payment of any judgment that may be recovered against his principal. The bond is not affected by contingencies which might have discharged the attachment, if no bond had been given. Neither death nor bankruptcy of the principal discharges the surety from his obligation to satisfy a judgment lawfully rendered against the principal or his representatives; but such judgment, in the absence of fraud or collusion, is conclusive against the surety. Gass v. Smith, 6 Gray, 112. Tracy v. Maloney, 105 Mass. 90. Cutter v. Evans, 115 Mass. 27.
The judgment now in question, having been ordered, in the lawful exercise of the power of the court, to be entered as of a previous term, was “ the final judgment in said action,” within the meaning of the bond to dissolve the attachment, and therefore, in contemplation of law, within the undertaking of the obligors, and binding upon principal and sureties equally. Chauvel v. Chimelli, 4. B. & Ad. 590 S. C. 1 Nev. & Man. 731. By the
The technical difficulty of holding the judgment to be binding as of a date before it actually existed is no greater than has always attended every judgment rendered nunc pro tune, and every judgment which took effect by legal relation at an earlier day than that at which it was actually entered. As Lord Mansfield was accustomed to observe, fictions of law can never be contradicted so as to defeat the ends and purposes for which they were invented. Mostyn v. Fabrigas, Cowp. 161, 177. Morris v. Pugh, 3 Burr. 1241, 1243. By the common law, judgments had relation to the first day of the term, and bound the lands of which the debtor was then seised, even if he aliened them bond fide before judgment was actually signed and execution issued ; 2 Saund. 9 b, note ; and the St. of 29 Car. II. c. 3, §§ 13-15, providing that as against bond fide purchasers they should be deemed judgments only from the time when they were actually signed, did not restrict their validity or effect, in law or equity, by relation to the first day of the term, as against the debtor or other persons. Odes v. Woodward, 2 Ld. Raym. 766, 849; S. C. 1 Salk. 87; S. C. cited 1 Barnard. 404. Robinson v. Tonge, 3 P. Wms. 398. In Mara v. Quin, 6 T. R. 1, it was held that a plaintiff, who had brought scire facias upon a judgment against an executor, might amend that judgment, by entering it as of an earlier term, and might also amend his scire facias accordingly, for the purpose of reaching assets of the testator, which had come to the executor’s hands before the date of the judgment as it stood, unless the executor could show that some injustice would be thereby done; and that decision was approved by Mr, Justice Metcalf, delivering the opinion of this court, in Springfield v. Worcester, 2 Cush. 62. By our practice, the record of a judgment may be amended or extended as of a former term, notwithstanding the time limited for suing out a writ of error has expired. Rugg v. Parker, 7 Gray, 172. Parker v. Rugg, 9 Gray, 209.
In the case at bar, the judgment, having been legally rendered as of the former term, has the same operation, for all purposes
Judgment on the verdict for the plaintiff.
