Wing v. Chase , 35 Me. 260 ( 1853 )

Wells, J.

— The instrument upon which the action is founded is under seal, and although it is not so stated in it, yet the existence of the fact is sufficient to make it the deed of the defendants. 1 Dyer, 19, a.

The declaration should show in an action of covenant that the contract was under seal. 1 Chitty on Plead. 114. But if there is an omission of such allegation in the plaintiff’s declaration, as is suggested, though it is not exhibited, the error would bo amendable.

The sealing of the instrument implies and carries with if; internal evidence of a consideration. 2 Black. Com. 446. It is not any objection to a bond, if there is no consideration to it. Fallowes v. Taylor, 7 T. R. 280; Bunn v. Grey, 4 East, 200. The recital of a consideration of ten per cent, paid to the defendants cannot affect the obligation, for it would have been valid as their deed if nothing had been paid. Lee v. Oppenheimer, 32 Maine, 254.

'File covenant, “ that we will not levy said execution nor any execution growing out of said claim on the property or body of said Wing,” was broken by the arrest of Wing on Chase’s execution, for that execution manifestly grew out of the claim of the bank. It is true they' agree not to do what each one might do separately by commencing a suit for what he liad paid. If it clearly appeared, that the acts to be done, were several, and the defendants were not to be Iiolden for each other, one would not be liable for what the other did. But the covenant is in form joint, and there is nothing to indicate that they did not intend to be holden jointly. The levying the execution, which the bank recovered against them, upon the body or property of Wing, would not necessarily be a separate act. In reference to the part of the covenant not to levy that execution, they must have intended to be holden jointly. And it is not probable they contemplated a joint obligation as to one part of the covenant, and merely a several one as to another part of it.

It appears, that Chase caused Wing to be arrested on the execution, which issued on his judgment; that Wing was discharged by giving a poor debtor’s bond ; that a suit was subsequently commenced against him for a breach of its conditions, and that the damages and costs were paid by him. Wing might have paid Chase’s execution when he was arrested, and prevented the expenses, which accrued by his own act after his arrest. He cannot justly claim as damages a greater sum than he was then required to pay. That sum will be the amount of Chase’s execution, and the officer’s fees for making the arrest, to which should be added interest on the same to the time of rendering judgment in this action.

Defendants defaulted.

Shepley, C. J., and Hathaway, J., concurred. Howard, J., considered that the costs and expenses subsequent, as well as those previous, to the arrest should be included in the damage, assessed for the plaintiff.