262 Mass. 372 | Mass. | 1928
It is agreed that the plaintiff obtained judgment against Phillips and instituted proceedings for his arrest on execution. On April 7, 1925, Phillips, having defaulted in those proceedings, was arrested upon the execution. There was then due thereon $944.37. On that day, with the defendant as surety, Phillips, as principal debtor, pursuant to G. L. c. 224, § 20, entered into a recognizance to the plaintiff in $1,100, that within thirty days he would deliver himself up for examination before a district court giving the statutory notice of time and place, would appear at the time fixed for examination and from time to time until it was concluded, and would not depart without leave, not making any default, and would abide the final action of the court. On May 4, giving due notice of time and place, he delivered himself up; and May 7 was fixed as the time for examination. On May 5 he filed a petition in bankruptcy and was adjudicated bankrupt. The plaintiff’s judgment claim was scheduled as a debt, was provable at the proceedings and would be discharged by the discharge if obtained. On May 7, Phillips appeared at the time and place fixed for his examination, the plaintiff, by attorney, being present, and filed a certificate of the proceedings in
On April 17, 1926, Phillips applied for his discharge. No creditor objected, but upon representation by the trustee the application was not then acted upon and it is still pending, no discharge having been either denied or granted.
The judge in the Superior Court found that Phillips had defaulted and ordered judgment against the defendant in the penal sum of the recognizance, execution to issue for $1,045.91, the amount of the judgment, interest and costs, which he found due in equity and good conscience. The defendant appealed.
He contends that the Municipal Court was without jurisdiction to declare the defendant in default at a time when it had no power to commit the principal debtor to jail in a civil proceeding solely directed to that end; that 'by proving its claim in bankruptcy and by failing to ask defaults before February 11, 1926, the plaintiff waived the nonappearance of the principal and so discharged the surety; that by proving its claim against the principal’s bankrupt estate, the plaintiff made an election of claims which precludes any subsequent proceedings against the surety; and that if anything is due in good conscience and equity it is only a nominal sum.
The principal had been taken on execution. He had secured a period of liberty by means of the recognizance.
In failing to take defaults in September and January, the plaintiff waived no right of which the surety can complain. It owed no duty to the surety to insist upon default in the state of the facts as they appear. See Sturman v. McCarthy, 232 Mass. 44, 47. There was no bargain with the principal by which the surety might suffer and cases like Mount Washington Glass Works v. Allen, 121 Mass. 283; Andrews v. Knowlton, 121 Mass. 316; Chellis v. Leavitt, 124 Mass. 359; and Sturman v. McCarthy, supra, are not controlling.
Nor was there any election of remedy made by the plaintiff which relieves the surety. The proof in bankruptcy, from which nothing has been received, is at most merely cumulative, and does not bar action on the recognizance. Crawford-Plummer Co. v. McCarthy, 227 Mass. 350. Valente v. Cosentino, 218 Mass. 125.
It is true that at the moment of breach, the principal
The principal debtor’s freedom from arrest, in fact, however, was due to the recognizance. It did not depend upon action by the court. In accord with the condition of the recognizance he was forced to institute the proceedings. The court appealed to could not act further once the condition had been broken. H. B. Smith Co. v. Judge of the District Court, 246 Mass. 190. This resulted from the existence of the recognizance and not from the bankruptcy act. We see nothing which prevented the entry of the default. The principal debtor could not be arrested upon it. The creditor’s remedy was upon the broken recognizance. Nothing has occurred since the breach to relieve the surety from the obligation it imposed.
It follows that the order for judgment was proper and it is
Affirmed.