Hamilton v. Bryant

114 Mass. 543 | Mass. | 1874

Devens, J.

This case cannot be distinguished from Carpenter v. Turrell, 100 Mass. 450. It was there held that a discharge in bankruptcy was a bar to the further prosecution of a suit against the bankrupt commenced by attachment more than four months before the commencement of the bankruptcy proceedings, if the ttachment was dissolved by giving bond under the Gen. Sts. c. 123, § 104, notwithstanding the provisions in the Bankrupt Act of 1867, c. 176, §§ 14-33, preserving the lien of an attachment made four months or more before the commencement of the bankruptcy proceedings, and continuing the liability of sureties after the discharge in bankruptcy of their principal. The facts in the present case differ from those in the one cited only in this, that here the attachment continued in existence until after the defendant was adjudged a bankrupt, while in that the attachment had been dissolved by giving bond previous to such adjudication. Here, as in that case, the bond does not become of the nature of a debt until the contingency arises on which it is to be made operative, to wit, a judgment against the principal, which he is bound to pay, and which for thirty days remains unpaid. As we cannot now render judgment against the principal, the bond is discharged by the determination of the contingency upon which the obligation of the bond is made to depend.

The inquiry, whether the bond given by the defendant after his bankruptcy operated to dissolve the attachment, is not presented to us by this agreed statement of facts, which submits only the question whether a special judgment can be entered to be enforced by action upon the bond above named against the defendant and his sureties therein. In either aspect of the effect of the bond, a final judgment against the defendant is necessary, in order that it may be enforced, and that judgment the court cannot enter. Bankrupt Act, supra, §§ 21-34. If the bond did not operate to dissolve the attachment, it gave the defendant additional security only if final judgment against the defendant was obtained, and if it did dissolve the attachment, it would impose no greater obligations upon the principal and sureties than if given before the commencement of the proceedings in bankruptcy.

Judgment for the defendant,