Daley v. Carney

Colt, J. A bond to dissolve an attachment may be approved by the plaintiff or his attorney, or by a master in chancery upon notice and examination. Gen. Sts. a. 128, §§ 104, 105. In this case the principal obligor, having failed to secure the magistrate’s approval of a bond signed by the defendant as a surety, applied to the plaintiff and obtained his written approval upon the bond. There is nothing that requires the plaintiff to exercise his right of approval before the magistrate is called upon. The two methods are independent of each other, and the power of the plaintiff to approve is unlimited. It is sufficient if the sureties are satisfactory to him, although of no pecuniary responsibility whatever. Whereas the magistrate can only approve when it is made to appear that each of the sureties, where there are only two, is able to respond for an amount equal to that for which the attachment is laid. There can be no objection, therefore, to the manner in which this bond was approved. Upon the question of its delivery, it appeared that the plaintiff waived notice on an application for its approval by the magistrate; that the defendant and the principal in the bond then went before the magistrate, who refused to approve it; and that the principal soon afterwards obtained the plaintiff’s approval, telling him at the time of the magistrate’s refusal. The bond was delivered to the attaching officer by the principal in the absence of this defendant, and without his knowledge that the plaintiff had approved it. It was then returned with the writ. The case was tried without a jury, and it was ruled as matter of law that the action could not be maintained. But we are of opinion that there was evidence of a delivery by the authority of the defendant 290 sufficient to warrant a jury in finding for the plaintiff. The execution of the bond by the defendant declaring in its recitals the purpose for which it was given, and the fact that after the magistrate’s refusal it was left by the defendant with the principal obligor without qualification or condition, or any limitation upon the use to which it was to be applied, would justify the in ference that the defendant intended to confer the authority to deliver it in accordance with the declared purpose of its execution. The obvious effect of the defendant’s acts and declarations cannot be defeated or qualified by his secret purpose, or intention, or expectations. Ward v. Lewis, 4 Pick. 518. Powers v. Russell, 13 Pick. 69. Sampson v. Barnard, 98 Mass. 359. Maynard v. Maynard, 10 Mass. 456. Exceptions sustained.