Pettingill v. Patterson , 32 Me. 569 ( 1851 )

Wells, J.,

orally.—No authority is shown, nor do we see how the position could be maintained, that a bond, given to two persons, one of whom had previously died, is therefore inoperative. It fails only as to one. It is not defeated as to the survivor.

It is said there was no consideration for the bond. But the seal sufficiently evidences a consideration. Besides there was an ample consideration in the devises and legacies of the will, given on condition that this very bond should be fulfilled.

Again, it is said the bond cannot support an action, because the fulfilment of it was charged upon the real estate. That was but an alternative mode of enforcing it; a mere cumulative remedy. There is no ground for the defence.

Continued for trial.