Wood v. Hayward

Putnam J. delivered the opinion of the Court. We do not perceive any reason to think that the bond described in the second count is not a probate bond. It was required by St. 1818, c. 112, § 2, to be given to the judge of probate. It is strictly speaking a probate bond as defined in Thomas [271] v. White, 12 Mass. R. 369, and is not extra-official. The case of White v. Quarles, 14 Mass. R. 451, may seem at first view to militate with this ; but it will be found, that the point now under consideration was not decided. That action was originally commenced in the Court of Common Pleas, and if it were a probate bond, the suit should have been commenced in this Court; so the action was properly dismissed ; and if it were not a probate bond, the successor of the judge of probate could not have sued it, as he did ; therefore, quacunque via, that suit was properly dismissed. So the first reason assigned in arrest of judgment cannot prevail. And we are of opinion that the second reason for annulling the judgment, is also without legal foundation. It is said that the bond is joint, and that there is no allegation that any of the obligors is dead or without the jurisdiction of the Court, and that only one of the obligors is made defendant. The short but sufficient answer is, that the bond is several as ‘ well as joint. It is also to be recollected, that this was a matter which should have been pleaded in abatement, and it is now too late to raise the objection. It is lastly alleged, that the plaintiff has misjoined two bonds in one writ ; which bonds contain different obligors. We think that as the defendant is upon both of the bonds, and may be sued severally, and as both of the bonds were taken for the use of the same party, this objection cannot prevail. It was the duty of the pleader, under such circumstances, to join them, and not to put the defendant to the useless expense of another suit. This view of the case renders it unnecessary to consider the demurrer to the first count; as we are all of opinion that the second count is good; that the motion in arrest of judgment should he overruled ; and that judgment should be rendered for the plaintiff upon the verdict, for a forfeiture of the penalty of the bond. The defendant will be heard in equity, as to the amount of the damages.