Leonard v. Speidel , 104 Mass. 356 ( 1870 )

Colt, J.

The bond upon which this action is brought is joint and several, and is signed by the defendants as sureties for the original defendants in the first action. It was given to dissolve the attachment, under the Gen. Sts. c. 123, § 104, and was conditioned to secure the payment to the plaintiff of the amount of the judgment, if any, which he should recover in that case, within thirty days after final judgment.

1. The bond produced at the trial corresponds with the allegations in the declaration. By an obvious clerical error the blank in the condition was filled up with the name of the plaintiff, instead of that of the principals in the bond. There is no difficulty in ascertaining from the whole instrument, applied to the subject matter, the intention of the parties, and the bond is to be read as if the name of the principals, or no name at all, had been inserted in the blank space.

2. Upon a joint and several bond, the plaintiff must sue one or all of the obligors, and cannot bring his action against an intermediate number. But in actions of contract, nonjoinder of parties jointly liable as defendants can only be taken advantage of by plea in abatement. In this case, the right to plead in abatement was lost, by filing an affidavit of merits with an answer in bar. Pratt v. Sanger, 4 Gray, 84, 88. Cole v. Ackerman, 7 Gray, 38. Whipple v. Rogerson, 12 Gray, 347.

3. The condition of the bond was broad enough to include a judgment recovered in the original action, upon the contract declared on, against two of the original defendants. It is not restricted to a judgment against all jointly, and the fact, that at the trial the plaintiff failed to show that one of them was a party to the contract, who thereupon recovered costs, does not release the defendants here from liability.

The case at bar is to be distinguished from Tucker v. White, 5 Allen, 322, where the surety was held to be discharged. In that case, the plaintiff in the original action, of his own motion, without notice to the surety, discontinued against one of two defendants, and upon summoning in a new joint defendant took judgment against him and the remaining original defendant. Plainly this was a judgment against a new party; and the surety had a right to say, I entered into no obligation to secure such judgment. The present case does not show, nor is it perhaps material, what property was attached. The joint property of all, or of. any two of the defendants, or the separate property of one or more of them, was subject to attachment. And it may be that only the property of the defendants against whom judgment was rendered was in fact taken. If the separate property of the defendant who eventually prevailed was under attachment, and he wished to escape liability upon any judgment which might be had against his codefendants, then in order to dissolve the lien upon his property he should have given a separate bond, to secure only the judgment which might be recovered against him.

The judgment of the superior court must be entered for tire penalty of the bond, and execution will be awarded for so much of the penal sum as appears to be due according to the Gen. Sts. c. 133, §§ 9, 10. Exceptions overruled.