
    Kyes Smith & another vs. Thomas Meegan & another.
    Norfolk.
    January 24.—29, 1877.
    Morton & Endicott, JJ., absent.
    A bond to dissolve an attachment, duly executed and accepted by the creditor, is not invalid because it does not contain the condition required by the St. of 1875, c. 68, § 2.
    The fact that a bond, given to dissolve an attachment, is not filed with the clerk of the court, as prescribed by the St. of 1870, c. 291, § 5, does not affect a right of action thereon.
    Contract on a bond to dissolve an attachment, signed by Barney Connor as principal, and by the defendants as sureties. The case was submitted to the Superior Court, and, after judgment for the plaintiffs, to this court, on appeal, on an agreed statement of facts in substance as follows
    
      The bond was in accordance with the provisions of the Gen. Sts. o. 123, § 104, but did not contain the clause, required by the St. of 1875, c. 68, § 2, obliging the sureties to pay the special judgment, provided for in § 1, in case of the bankruptcy of the defendant. The bond was not filed with the clerk of the Superior Court, to which the plaintiffs’ writ against Connor was returnable, within ten days after its approval. The plaintiffs recovered judgment against Connor, who did not pay the same, nor any part thereof.
    The defendants admitted that they executed the bond, but contended that the plaintiffs were not entitled to judgment, for the following reasons : 1st. Because the bond was given contrary to the provisions of the St. of 1875, e. 68, § 2, inasmuch as the bond did not contain a condition obliging the sureties to pay to the plaintiffs the amount of any special judgment. 2d. Because the bond was not filed with the clerk of the court to which the plaintiffs’ writ was returnable within ten days after it was approved.
    Judgment was to be entered for the plaintiffs for the penal sum of said bond, if the above objections were insufficient; otherwise, judgment for the defendants.
    
      J. L. Eldridge & G. A. Smythe, for the plaintiffs.
    
      J. E. Cotter, for the defendants.
   Gray, C. J.

This bond, having been delivered to and accepted by the plaintiffs, (as appears by their suing upon it,) is not invalidated by the omission of the stipulation required by the St. of 1875, e. 68, § 2, but is good at common law. Mosher v. Murphy, 121 Mass. 276. The failure of the principal defendant to file the bond with the clerk of the court, in accordance with the St. of 1870, c. 291, § 5, cannot affect the plaintiffs right of action thereon. Glezen v. Rood, 2 Met. 490. Jones v. Bunn, 2 Met. (Ky.) 490. Judgment for the plaintiffs.  