McGrath v. Conway

Ames, J. The condition of the bond, according to the literal import of its terms, requires that the defendant in the original process should appear at the term at which it was returnable. It is true that, under the changes introduced into the practice in cases of this kind, by the Gen. Sts. c. 72, § 7, the personal appearance of the defendant has not the importance which it had under the earlier statutes; Jordan v. Lovejoy, 20 Pick. 86; and the decree of affiliation may be passed, whether he appears or not. Young v. Makepeace, 103 Mass. 50. But as he has distinctly bound himself to appear, his failure to do so must necessarily be considered as technically and formally a breach of the bond. The plaintiff is therefore entitled to maintain her suit, and to have judgment for the penalty of the bond, subject, however, to the provisions of the Gen. Sts. c. 133, §§ 9, 10, that execution shall issue only for so much of the penal sum as is then due and payable in equity and good conscience, for the breach of the condition ; that is to say, for a nominal sum only for this particular breach. If by his failure to comply with such further or final order as the court may pass, in the original process, any further sum should become due on the bond, she can sue out a scire faldas on the judgment, and obtain a new execution for the damages caused by such additional breach. Exceptions sustained.