Roberts v. Pepper 108 Mass. 356

Jonathan C. Roberts vs. Thomas S. Pepper & another.

If a bond given on a petition for review of a judgment is conditioned only that the petitioner shall prosecute the petition to final judgment and pay all such costs and damages as the obligee shall recover against him on said final judgment; and the petition is dismissed without costs; there is no breach of the condition.

Contract- against the sureties in a bond given by Mary Pepper to the plaintiff, dated in November 1868, and conditioned “ that, whereas the above bounden Mary Pepper this day sued out of the clerk’s office of the superior court a petition against the said Jonathan. C. Roberts for review of an action wherein the said Jonathan C. Roberts hath recovered judgment against her m said superior court, in due form of law, returnable before our justices of our superior court next to be holden at Salem, within and .or our said county of Essex, on the first Monday of December next; now if the above bounden Mary Pepper shall prosecute *357her said petition to final judgment, and shall pay all such costs and damages as the said Jonathan C. Roberts shall recover against her upon the final judgment, then this obligation to be void and of no effect; otherwise, to remain in full force and virtue.”

The parties agreed that “ the petition was duly entered at the term of court to which it was returnable, and at a subsequent term came on for hearing, when the court passed on the same and entered a judgment thereon of 1 Petition dismissed, without costs.’ ”

If on these facts there could be any recovery on the bond, judgment was to be entered for the plaintiff, otherwise for the defendants.

W. J). Northend, for the plaintiff.

0. iSewall, for the defendants.