Howe v. Grimes

DeCourcy, J. On August 20, 1906, one Lincoln Young was arrested on a warrant issued upon a bastardy complaint, and on August 21 was released from arrest after giving the bond in suit signed by the defendant as surety. The hearing in the municipal court was continued from time to time until November 12, when Young defaulted. The case was duly transmitted to the Superior Court, and on April 10, 1908, Young, not appearing, was adjudged to be the father of the plaintiff’s child and was ordered to stand charged with the maintenance thereof. The bastardy statute makes provision for two distinct bonds previous to that required when the defendant is bound over to the Superior Court. R. L. c. 82, § 4, authorizes his release from arrest upon giving a bond for his appearance before the municipal court “ at a time to be specified in said bond.” The statute of which this section is a re-enactment was passed in 1871 (St. 1871, c. 42, § 1; Pub. Sts. c. 85, § 4); and before that time the defendant presumably was compelled to remain in custody after his arrest until the time of his arraignment, as no means were [36] provided in the statute for his release on bail. Rev. Sts. c. 49, §1. Gen. Sts. c. 72, § 4. As early as 1863 the Legislature authorized the local courts to continue from time to time the hearing of a bastardy complaint, and to take from the accused a bond for his appearance, "at any hearing of the complaint at any subsequent time to which'the same may be continued, and from time to time until the final disposition of the complaint before the court or justice and not depart without leave.” And this provision, with immaterial verbal changes, was re-enacted in Pub. Sts. c. 85, § 6, and now appears in R. L. c. 82, § 6. The bond in the present action undertakes to secure the attendance of the accused not only on the day originally set for the hearing of the complaint, but also on subsequent days to which the hearing might be continued. There was no statutory authority for such a bond, embracing the conditions mentioned in both § 4 and § 6, until the present year, when St. 1911, c. 53, was enacted. And an additional condition in the present bond is that the accused shall abide the order of the municipal court, — a condition that is not provided for in either § 4 or § 6. Clearly the bond is not good as a statutory bond and consequently is not security for the performance by the accused of the order of the Superior Court. R. L. c. 82, §§ 7, 15. The bond, however, is valid as a voluntary or common law bond. It is an agreement not prohibited by the statute nor contrary to public policy, and is founded upon a sufficient consideration. Farr v. Rouillard, 172 Mass. 303. The default of the accused in the municipal court constituted a breach of the defendant’s common law obligation and entitles the plaintiff to at least nominal damages. The plaintiff has precluded us from considering whether she is entitled to substantial damages by the statement in her exceptions that “Thé plaintiff does not contend that any actual damage can be shown by reason of the default of the respondent in the municipal court.” Exceptions overruled.