126 A. 687 | Conn. | 1924
The condition of the bond in suit is in the alternative form found in § 5888 of the General Statutes; that is to say, it may be performed either by paying the judgment recovered in the action, or by paying to the officer having the execution issued on such judgment the actual value of the interest of the defendant in the attached property at the time of the attachment. It is the settled law of Connecticut that a bond in this form, given to obtain a release of an attachment, is a substitute for the property, and not a substitute for the lien of the attachment; and that therefore the obligation *544
of the bond is discharged by an insolvency and bankruptcy which would have discharged the attachment had no bond been substituted for it. Perry v. Post,
The attempt is made to distinguish the case at bar for the sole reason that § 5887 of the General Statutes, carrying the subtitle, "Amount of attachment bond," provides that "such amount shall equal the value of the estate which the process directed to be attached, unless" etc.; whereas the amount of the bond in this case is substantially less than the whole value of the estate directed to be attached, though it equals the value of the property released from the attachment.
From this it is argued that the bond in suit was not a "statutory bond," and therefore is not, or at least has not yet been held to be, a substitute for the property attached. We are of opinion that the point has been, in principle, decided adversely to the plaintiff by theRepublic Rubber Co. case. The condition of the bond sued on in that case was also in the statutory form and the claim there made was that nevertheless it was not a substitute for the property attached because not imposed on the plaintiff by an order of court, but voluntarily accepted, and the attachment released by consent. On that point we said, on p. 555: "This position is unsound, because the bond, whether voluntarily accepted or imposed by judicial order, simply expresses a contractual obligation of the principal and surety; and the decisions referred to [Perry v. Post and Schunack v.Art Metal Novelty Co., supra] have construed the statutory formula as expressing an obligation conditioned on the continuance of the attaching creditor's right to secure by attachment a preference over other creditors." On the facts found, the plaintiff's attachment would *545 have been dissolved, had no bond been substituted therefor, by the institution within four months of bankruptcy proceedings resulting in an adjudication declaring the defendant in the original action a bankrupt, and the bond was therefore discharged by that adjudication.
The Superior Court is advised to enter judgment for the defendant.
In this opinion the other judges concurred.
