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113 Mass. 325

Flagg v. Jones

Massachusetts Supreme Judicial Court

Decided November 15, 1873

Massachusetts Supreme Judicial Court · decided 1873-11-15

Contract. The writ, which was returnable at a term of the Superior Court to be holden at Lawrence on the first Monday of March, 1869, was served by the arrest of the defendant. The bail bond executed by the defendant recited that the writ was returnable at the Superior Court to be holden at Salem, and was to be void if the defendant should “ appear before the said justices of said court as aforesaid.” Lawrence, not Salem, was the place where the term was to be held.

Relies on Bean v. Parker · Arnold v. Allen · Colburn v. Downes

Decided 1873-11-15

Gray, C. J.

¶1The writ was in due form, returnable at the Superior Court to be holden at Lawrence on the first Monday of March, 1869. No attachment of goods or estate was made, and the arrest of the defendant was the only service of the writ upon him which was required by law. Gen. Sts. c. 123, §§ 10, 11, 23. The bail bond is indeed, by our statutes, to be considered so far a matter of record that it can be enforced by scire facias only, but it is no part of the record for any other purpose. Gen. Sts. c. 125, § 8. Bean v. Parker, 17 Mass. 591. Crane v. Keating, 13 Pick. 339. It is at least doubtful whether the misrecital m the bond, of Salem for Lawrence, in describing the court to which the writ was returnable, would defeat a writ of scire facias upon the bond. Crofts v. Stockley, 2 Moore & Payne, 81; S. C. 5 Bing. 32. Arnold v. Allen, 8 Mass. 147. Colburn v. Downes, 10 Mass. 20. Glezen v. Rood, 2 Met. 490. But, however that may be, it affords no ground for dismissing this action.

¶2Exceptions overruled.

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