Central Mills Co. v. Stewart , 133 Mass. 461 ( 1882 )

Devens, J.

The bond in suit is not such a bond as is required by statute, which being given, and the proper steps in relation thereto being complied with, operates to dissolve an attachment without the plaintiff’s consent. - Gen. Sts. c. 123, §§ 104-106. St. 1875, c. 68, § 2. But the creditor may voluntarily consent to dissolve an attachment by which he has sought to secure his debt, and, if he does so at the request of any one, a promise by such a person to pay the debt sought to be secured, either before or after judgment, is made upon a valid legal consideration. The bond by which the defendants agreed to pay the amount of any judgment which the plaintiffs might recover against P. T. Walsh in an action brought by them against him on a writ dated January 17,1881, was therefore made upon sufficient consideration, which the defendants received by the surrender to them of the property attached, and was good at common law. Mosher v. Murphy, 121 Mass. 276. Smith v. Meegan, 122 Mass. 6.

The defendants suggest no reason why the plaintiff should not recover upon it, except that the bond does not correspond to the writ, which was against Anthony and John E., as well as P. T. Walsh, although process had been served only upon the latter, and it was his property which was the subject of attachment. If a person desires to release his own property only from attachment, and to escape any liability for a judgment that may be rendered against his co-defendant, he may give bond simply to secure such judgment as may be recovered against himself. Campbell v. Brown, 121 Mass. 516. Such bond may equally be given on his behalf. The language used in the bond in suit shows that it was intended to be binding in case of a judgment against P. T. Walsh. Eveleth v. Burnham, 108 Mass. 374. Although there was no attempt to describe the suit except as one against P. T. Walsh, in which his goods were attached, it was sufficiently identified by the attachment from which the goods were released to the defendants upon the execution of the bond. No responsibility was assumed by the defendants unless this suit resulted in a judgment against him such as has actually been rendered. The suit was sufficiently identified, and it cannot be important that other defendants were named in it, especially in view of the fact that judgment was recovered against him alone. Exceptions overruled.