
    Nathan Holbrook vs. Thomas Haney & others.
    Suffolk.
    March 22.
    April 3, 1878.
    Colt & Morton, JJ., absent.
    In an action on a bond given to dissolve an attachment, it appeared that, at the trial of the original action, exceptions taken by the defendant were disallowed and adjudged frivolous by the judge, and judgment was entered for the plaintiff at the end of the term; that within the time allowed by law the defendant filed a petition to establish the truth of the exceptions; that, after the expiration of thirty days from the date of the judgment, and while this petition was pending, the action on the bond was commenced; and that, before the action was tried, the exceptions had been dismissed for want of prosecution. Held, that the defendant’s exception to a ruling that the action could be maintained, must be overruled, with double costs and twelve per cent, interest.
    Contract upon a bond to dissolve an attachment, signed by the first named defendant as principal and the others as sureties. Writ dated March 14, 1877. Answer, a general denial.
    At the trial in the Superior Court, before Gardner, J., it appeared that the case in which the bond was given was tried in the Superior Court without a jury, on December 27, 1876; that the judge found for the plaintiff in the sum of $798; that on the same day the defendant filed exceptions and presented them to the judge who tried the case; that on December 28, the judge disallowed the exceptions, and adjudged them frivolous, immaterial and intended for delay; that on the same day, being the last day of the term, judgment was entered under a general order of the court in all cases not continued absolutely or nisi; and that on January 8, 1877, the plaintiff took out execution, which was afterwards returned in no part satisfied.
    It was admitted, that Haney, on January 16, 1877, after due notice to the plaintiff, filed in this court a petition, verified by affidavit, to establish the truth of his exceptions, which was pending, without any steps taken thereon, until November, 1877, when it was dismissed for want of prosecution.
    The record of the original action showed no special order of 4 judgment or execution, nor any order, except as above recited, nor any notice, minute or suggestion that the defendant contemplated filing the petition to prove his exceptions; and the judgment, entered on December 28, 1876, remains in full force so far as it ever had any force.
    
      The defendants contended, and asked the judge to rule, that there had been no final judgment in the original action, and no breach of the bond; that the plaintiff was not entitled to have judgment and execution therein; that the court had not specially awarded judgment or execution ; and that this action could not be maintained.
    But the judge refused so to rule, and ruled that the action could be maintained. The defendants alleged exceptions.
    «7. L. Eldridge, for the defendants.
    
      A. 0. GlarJc, for the plaintiff, moved for double costs and twelve per cent, interest.
   By the Court.

The exceptions in the original action having been disallowed and adjudged frivolous by the judge before whom the trial was had, judgment might be and was entered -forthwith, under the general order, on the last day of the term, and took effect from that time, subject of course to be vacated if this court should, on petition, establish the truth of the exceptions and sustain them. Gen. Sts. e. 115, §§ 9-11. At the expiration of thirty days from that judgment, the plaintiff was therefore entitled to bring this action. Gen. Sts. e. 123, § 104. And as, at the time of the trial thereof, the petition to establish the truth of the exceptions had been dismissed for want of prosecution, there was no shadow of a reason why judgment should not be rendered for the plaintiff.

Exceptions overruled, with double costs and twelve per cent, in* terest.  