Sweetser v. Hay

Metcalf, J. It has been decided that the successors in office of these obligees cannot maintain an action on this bond. Stevens v. Hay, 6 Cush. 229. A question, which was then left open, is now raised; to wit, whether an action can be maintained on it by the obligees themselves. It is argued for the defendants, that the bond is void, because no law requires or authorizes a bond to be given to selectmen by a town treasurer, or a collector of taxes; the Rev. Sts. c. 15, requiring such treasurer and collector to give bond to the town. On the other hand, it is insisted for the plaintiffs, that the bond, though not made conformably to the statute, is valid by the common law; it having been executed voluntarily, and containing the conditions which would be proper in a bond given to the town \nd this position of the plaintiffs is sustained by authority. [52] In New Hampshire, where a statute, as here, directs that a collector’s bond shall be given to the town, it has been decided that his bond, given to the selectmen, was valid at common law; and they maintained an action on it. Horn v. Whittier, 6 N. H. 88. A bond of the receiver of the school funds in Tennessee, which the law required to be given to the super» intendent of public instruction, was held valid, though given to the governor. The Governor v. Allen, 8 Humph. 176. And bonds, which the laws of North Carolina and Kentucky directed to be given to the governor and his successors in office, were held to be valid, though given to the justices of a county. Vanhook v. Barnett, 4 Dev. 268. Justices of Christian v. Smith, 2 J. J. Marsh. 472. The principle on which these cases were decided has been frequently recognized by our own court, although we do not find that it has ever been applied, by. a judgment, to a case precisely like the present. In 1797, a bond was given to a judge of probate, by an heir to whom the whole of his ancestor’s real estate was assigned, pursuant to St. 1783, c. 36, § 5, conditioned to pay to his co-heirs their proportionable shares of the true value of that estate. A suit on the bond, brought in this court, was dismissed, on the ground that the judge of probate was not required nor authorized by the statute to take the bond; that it was an extra-official and not a probate bond; and therefore that this court had not original jurisdiction of a suit on it. But Parker, C. J. said : “ No objection is made to the validity of the bond. It is undoubtedly good at common law; for the obligor has by his deed consented to make the obligee trustee for the persons interested in the sum secured.” Thomas v. White, 12 Mass. 369. And there are many cases where bonds, which statutes prescribe to be given with certain conditions, or with certain penalties, have been decided to be valid, though taken with different conditions, or with different penalties; provided they contain no condition contrary to those which are prescribed, or contrary to law. Morse v. Hodsdon, 5 Mass. 314. Kavanagh v. Saunders, 8 Greenl. 422. McGowen v. Deyo, 8 Barb. 340. Claasen v. Shaw, 5 Watts, 468. Freeman v. Davis, 7 Mass. 200. Burroughs v. Lowder, 8 Mass. 373. [53] Treasurers v. Bates, 2 Bailey, 376. The case of Purple v. Purple, 5 Pick. 226, where a replevin bond was held void, which was given to the officer who served the writ, instead of the defendant in replevin, was decided on the ground that it was an unlawful bond; its purpose and effect being to aid in the commission of a trespass. Whether that decision was correctly made or not, the reason assigned for it is not applicable to the case at bar. There can be no pretence that these defendants’ bond was given in aid of any unlawful purpose. Actions have been supported on bonds which no law required, when they were executed voluntarily, and with proper conditions, to secure the performance of official duty. Postmaster General v. Rice, Gilpin, 554. Montville v. Haughton, 7 Conn. 543. Commonwealth v. Wolbert, 6 Binn. 292. Our opinion is, that the bond in suit is valid; that the defendants have made the plaintiffs trustees for the town of Stoneham; and that the plaintiffs are entitled to maintain this action, for the benefit of the town. And we are also of opinion, that if any demand was necessary, before commencing the action, the demand which was made was sufficient. The plaintiffs will take judgment for the penalty of the bond ; and the sum for which execution is to issue will be ascertained by an assessor. The case was accordingly referred to an assessor, who reported that execution should issue for the sum of $1,844.66, the amount found due on the examination of Hay’s accounts by the committee of the town. Exceptions were taken to his report, in certain matters of fact, and also on the ground that said sum included money received by "Hay between the times of his election and giving bond. But the court, without deciding whether the bond made the defendants liable for any breach of its condition, committed by the collector before the day of its date, were of opinion that it sufficiently appeared from the assessor’s report that the deficit of $1,844.66 was caused by the default of the collector subsequently to the date of the bond; and ordered execution to issue for that sum and interest.