Way v. Wright
Massachusetts Supreme Judicial Court
This was a writ of scire facias against bail, dated December 11th 1840. The case was submitted to the court of common pleas, on the following facts : The defendants, on the 22d of February 1840, became bail for Martin T. Draper, in a suit brought against him by the plaintiff, in which suit the plaintiff recovered judgment against said Draper, at the July term 1840, of the court of common pleas in this county, for $ 392.73, debt or damage, and costs of suit.
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This was a writ of scire facias against bail, dated December 11th 1840. The case was submitted to the court of common pleas, on the following facts : The defendants, on the 22d of February 1840, became bail for Martin T. Draper, in a suit brought against him by the plaintiff, in which suit the plaintiff recovered judgment against said Draper, at the July term 1840, of the court of common pleas in this county, for $ 392.73, debt or damage, and costs of suit. Execution issued on said judgment, August 10th 1840, and was delivered to an officer for service, who returned the same wholly…
1Opinion of the Court
Hubbard J.
The original defendant, Draper, being removed beyond the control of his bail, the plaintiff contends that this is an avoidance, and that the present defendants should be charged on their bond ; and although their inability to surrender him arises from his confinement in the state prison, yet that this furnishes no legal defence to the action.
Numerous authorities have been cited by the counsel, in the argument of this case. Many of them, however, have only a collateral bearing on the question to be decided. They relate to certified bankrupts ; to debtors who are lunatics; to persons…
2Cases cited6 opinions
- Bigelow v. JohnsonMassachusetts Supreme Judicial Court · 1819
- Bignell v. ForrestNew York Supreme Court · 1807
- Cathcart v. CannonNew York Supreme Court · 1799
- Loflin v. FowlerNew York Supreme Court · 1820
- Phœnix Fire Insurance Co. v. MowattNew York Supreme Court · 1827
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