Quinn v. Brennan

C. Allen, J. 1. The writ of review was not seasonably brought, and was properly dismissed. The statutes do not directly prescribe the time within which a writ of review must be brought, but in different sections it is implied that early action must be taken. Pub. Sts. c. 187, §§ 18, 22, 39. Leave to bring a writ of review was granted by the court in the present case, upon the filing of a bond, which was examined and [565] approved by the court, and which provided in its condition that Brennan “ shall forthwith prosecute a review to final judgment.” The court fixed no limit of time, but it was implied by the approval of the bond that the writ of review should be speedily brought. In point of fact, it was not brought for more than a year. If the court had fixed a time, the condition of the bond would be satisfied by bringing the review within that time. Bamforth v. Raddin, 14 Allen, 66. No time having been fixed, it was Brennan’s duty to act forthwith, or within a reasonable time. He waited too long, and the writ of review, not being within the implied terms of the leave of the court, was properly dismissed. See Lehan v. Good, 8 Cush. 302, 307; Hobart v. Tilton, 1 Greenl. 399. 2. The writ of review not having been seasonably brought, there was a breach of the bond, and judgment was properly entered for the penalty. Pub. Sts. c. 171, § 9. 3. On a judgment rendered in an action upon a bond, the court is to award execution for so much of the penal sum as is then due and payable in equity and good conscience for the breach of the condition. Pub. Sts. c. 171, § 10. And- it is for the plaintiff to prove how much is thus due. Austin v. Moore, 7 Met. 116, 124. In this case, the court found as a fact that all matters between Quinn and Brennan were settled, adjusted, and paid before 1871, and that at the time Quinn brought his suit in the Municipal Court he had no claim whatever in law or equity against Brennan, on account of any of the matters declared on by him. Quinn’s judgment against Brennan having been satisfied, if Brennan had duly prosecuted his writ of review he must have recovered judgment in review against Quinn for the $1,000 which Quinn had obtained on his judgment, with interest. An equivalent result was arrived at by Quinn’s reconveyance to Mrs. Brennan of the land obtained by the sale to him on the execution. Brennan was thus virtually reinstated in his property, and he owed Quinn nothing, and execution was properly awarded for a merely nominal sum on the bond, with costs. Ordered accordingly.