Carpenter v. Turrell

| Mass. | Nov 15, 1868

Wells, J.

This case must follow the decision in Loring v. Eager, 3 Cush. 188. The only difference in the facts is, that, in this case, but for the bond by which the attachment was dissolved, it would have been preserved by the provisions of the bankrupt act, and the plaintiffs might have had the restricted judgment which was rendered in Bates v. Tappan, 99 Mass. 376" court="Mass." date_filed="1868-03-15" href="https://app.midpage.ai/document/bates-v-tappan-6415358?utm_source=webapp" opinion_id="6415358">99 Mass. 376. But the lien, which was thus made available in that case, was preserved by the explicit terms of the statute. Those terms do not apply to the collateral liability of sureties upon a bond given to dissolve the attachment, and by which the lien is discharged. The plaintiffs contend that the bond is a mere substitute for the attachment, and therefore that it should stand in all respects as its precise equivalent. But such is not the purport of the bond, nor the intention of the statute which authorizes it to be given. It does not merely restore the possession of the property to the debtor subject to the attachment; it dissolves the attachment utterly. It is not given for the property itself, nor as security for its value; but for the payment absolutely of the judgment when recovered in the suit, whatever may be its amount. It is, in many respects, a higher and better security for the creditor than the attachment. It is not liable to oe discharged by the insolvency or death of the debtor; nor by any facts which might dissolve the attachment without defeating the suit. This is shown by the cases cited upon the brief of the plaintiffs.

The bond, although a substitute for the attachment, is not its equivalent, and has not its incidents. The provision of the bankrupt act, which preserves liens and attachments, cannot therefore have any application to it.

The plaintiffs also rely upon the provision of the bankrupt act which continues the liability of sureties, and other parties collaterally bound, notwithstanding the discharge of their principal. But we understand that provision to apply to persons who are liable for the debt of the bankrupt, which existed before and is discharged by the proceedings in bankruptcy. This bond was not such a debt. It does not become of the nature of a debt until the contingency arises upon which it is to be made operative; to wit, a judgment valid against the principal, and which he is bound to pay, but which remains for thirty days unpaid. The obligation of the principal himself is merely collateral to the suit. Until judgment, the bond bears a relation to vhe actual debt not unlike that of a replevin or bail bond, or recognizance with sureties upon appeal. They are incident to the legal proceedings, and follow the result of the suit. If th& plaintiff become nonsuit the debt would not be discharged, but the bond would be. So, where judgment is rendered for the defendant upon the plea of a discharge in bankruptcy, the bond is discharged, not by the proceedings in bankruptcy, but by the determination of the contingency upon which the obligation of the bond is made to depend.

We are satisfied that the ruling of the court below was correct. Exceptions overruled.