Reitz v. Board of Trustees

Pillsbury, P. J. The appellees brought an action of debt against the appellants upon the bond of Reitz as school treasurer, and the other appellants as his sureties.. The declaration counts upon a bond executed by the principal, Reitz, as well as by his sureties; to which Reitz filed the plea of non est factum, verified by his affidavit. The bond introduced in evidence does not, on its face, purport to be executed by Reitz, and he objected to its introduction in evidence upon that ground; but the court overruled the objection and admitted the bond. We are of the opinion that in this respect the court erred. A declaration upon a bond alleging its execution by the principal and sureties, is not supported by proof of one executed by the sureties alone. Bean v. Parker, 17 Mass. 603. Counsel have argued the question whether sureties are liable in any event upon such bond, but as the case must be tried again we refrain from expressing any opinion upon that point at this time. For the error indicated the judgment of the court below must be reversed and the cause remanded, with leave to the appellees to amend their declaration if they shall be so advised, when the liability of the sureties can be properly determined. Reversed and remanded.