Gifford v. Whalon , 62 Mass. 428 ( 1851 )

Fletcher, J.

There is no principle of law upon which the position taken for the defendant in this case, that the petition for a review, and the supersedeas thereon, are a bar to this action, can be for a moment maintained. It was said in. argument, that there being a supersedeas of the execution which issued on the judgment, if the plaintiff can maintain this action, he may pursue it to judgment and execution, and thus accomplish indirectly what he could not do directly. But it by no means follows, because the plaintiff can maintain the action, that he can obtain a judgment and execution to the prejudice of the rights of the defendant. The judgment and execution can be postponed in the discretion of the court, if necessary to secure the rights of the parties.

There may be very good reasons why the plaintiff should institute and maintain this action. It was made a point in the argument for the plaintiff, that the bond, which was given to obtain the supersedeas, made no provision for securing the payment of the judgment in the original action, in case no review should be granted, but only for the payment of such sums as should appear to be due after final judgment in the review.

It is apprehended that such bonds are very often defective in this particular. The statute provides, that a petitioner for a review may obtain a supersedeas of the execution, upon giving security to the adverse party, “ to pay whatever shall appear to be due to him, after the final judgment in the review, or upon such other terms as the court shall think just and reasonable.” Rev. Sts. c. 99, § 22. Although the statute in terms requires security only for what shall appear to be due after the final judgment in the review, yet the broad general provision, “ or upon such other terms as the court shall think just and reasonable,” would seem very clearly to warrant the court, before issuing a supersedeas, to require security for the payment of the judgment, in case no review should be granted, as well as for the payment of what may be found due after the final judgment in the review.

If the bond in this case did not secure the payment of the :udgment, in case no review was granted, that would furnish a sufficient reason why this suit should be instituted to obtain that security. Exceptions overruled.