129 A. 611 | R.I. | 1925
These three cases were tried together by a justice of the Superior Court sitting without a jury and a decision was entered in each case for the defendants. Each case is before us on the exception of the plaintiff therein to the decision of said justice and on the exception to the overruling of the plaintiff's demurrer to the defendants' plea.
There is no dispute as to the facts and the same question of law is presented in each case. On April 10, 1915, the plaintiffs, by their several writs of attachment, issued out of a district court, on the same day commenced these suits against the defendants by attaching their goods and chattels, and on the same day the defendants obtained a release of the property from attachment by giving in each case a bond, as provided by statute, to pay judgment. Each *26 writ was duly answered on the return day thereof, which is equivalent to the filing of the general issue, and plaintiff in each case claiming a jury trial, all of the cases were certified to the Superior Court. While the cases were pending in the Superior Court the defendants filed in each case a plea puisdarrien continuance alleging that on July 28, 1915, a petition in bankruptcy was filed against the defendants in the District Court of the United States for the District of Rhode Island and that said court, on August 10, 1915, adjudged said defendants bankrupt. At a meeting of the creditors of the bankrupt the defendants made an offer of composition which was accepted in writing by a majority of the creditors having a majority of the amount of claims. The composition was confirmed and the several plaintiffs, having neither consented nor objected to the composition, filed proofs of claims and accepted the composition. Thereafter the defendants again filed in each case a plea puisdarrien continuance setting forth the proceedings in bankruptcy, including the composition and acceptance by the several plaintiffs of the composition offered in connection with the claim filed and proved by them. The several demurrers of the plaintiffs to these pleas were overruled. At the trial the plaintiff in each case proved the amount due from the defendants at the time the suit was commenced, offered credit for the amount received in the composition settlement and asked the court to enter a special judgment for the balance, with a perpetual stay of execution against the defendants, to enable the plaintiff in each case to proceed against the sureties on the bond. The court refused the request and gave the defendants a decision for costs in each case.
The Superior Court was evidently of the opinion that an adjudication of bankruptcy of a defendant within four months after an attachment of his personal property which has been released by giving the statutory bond to pay judgment, in the event of the failure of the defendant to do so, releases the sureties on the bond from liability to pay judgment obtained by the plaintiff in the action commenced by *27
the writ of attachment, but since these cases were heard by the Superior Court we have decided to the contrary in Andrews v.Jones,
In Butterick Pub. Co. v. Bowen Co.,
The defendants suggest that, since the plaintiffs elected to prove their respective claims in the bankruptcy proceedings and accept a part of the estate of the bankrupts, they should not be permitted to have special judgments in order to collect the balance from the sureties. No rule of estoppel can be invoked; the plaintiff at all times made it clear that they intended to proceed against the sureties for any balance due after crediting them with the amounts received from the estate of the bankrupts. By accepting the amounts received the liability of the sureties was reduced. The plaintiffs' acceptance of a portion of the indebtedness from the estate of the bankrupts was not an election to pursue one of two inconsistent remedies and did not affect the liability of the sureties. Easton v. Ormsby,
In Pullman Metal Specialty Co. v. Lang, (Conn.)
The exception of the plaintiff in each case to the decision of said justice is sustained. The defendants may on July 6, 1925, appear and show cause, if any they have, why judgment with a perpetual stay of execution should not be ordered for the plaintiffs as follows: For plaintiff Eisenberg, $102.61 less $4.60 to be deducted from the costs; for plaintiffs, Siff and Cohen, $439.59 less $9.10 to be deducted from the costs and for plaintiffs, Goodwin and Sigel, $237.97 less $4.60 to be deducted from the costs.