Tracy v. Howe
Massachusetts Supreme Judicial Court
Contract against Charles Howe as principal, and Andrew Riley and Patrick B. Wallace as sureties, upon a bond, dated December 5, 1873, payable to the plaintiff, and conditioned that the defendant Howe should appear at the next December term of the Superior Court at New Bedford, and answer to a complaint made by the plaintiff on her examination on oath before the Municipal Court of Taunton, charging him with being the father of a bastard child of which she was pregnant, and…
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Contract against Charles Howe as principal, and Andrew Riley and Patrick B. Wallace as sureties, upon a bond, dated December 5, 1873, payable to the plaintiff, and conditioned that the defendant Howe should appear at the next December term of the Superior Court at New Bedford, and answer to a complaint made by the plaintiff on her examination on oath before the Municipal Court of Taunton, charging him with being the father of a bastard child of which she was pregnant, and that he should abide the order of the Superior Court thereon. The answer of the defendants admitted the execution of the…
1Opinion of the CourtAmes, J.
The difficulty with the defence relied upon is that it contradicts the record of the court. By the terms of the bond, the principal obligor was bound to appear and abide the order of the court. He does not fulfil this obligation by merely entering an appearance and filing an answer, denying the charge against him. He is bound to be in court when the case is in order for trial, and his default, as entered of record, is conclusive proof of the fact that, although solemnly called, he did not appear. In this state of the case, it was impossible that the court could do otherwise than rule that…
2Cases cited1 opinion
- McGrath v. ConwayMassachusetts Supreme Judicial Court · 1874
3Cited by1 opinion
- Fitzpatrick v. NordstromMassachusetts Supreme Judicial Court · 1900