Pike v. McDonald

32 Me. 418 | Me. | 1851

Shepley, C. J.

It appears by the agreed statement, that Simeon Pease recovered judgment against the plaintiff and defendants in June, 1843, founded upon a promissory note made by them on October 1, 1839, on which the plaintiff was surety for the defendants.

Note.—Howard, J. having been of counsel to one of the parties, did. not act in the decision of this case.

One of the defendants, John E. McDonald, filed his petition to be declared a bankrupt on February 22, 1843, and such proceedings were had thereon, that he obtained his discharge as a bankrupt on February 17, 1846.

The promissory note made to Pease might have been proved against John E. McDonald in bankruptcy, but instead of presenting his bankruptcy to prevent a recovery against him by Pease, he suffered that judgment to be recovered.

The promissory note" became merged in and extinguished by the judgment, which became a new debt accruing since the petition in bankruptcy was filed, and not provable in bankruptcy, as decided in the case of Holbrook v. Foss, 27 Maine, 441.

That judgment being a debt, which the defendant, John E. McDonald, was legally bound to pay, has been satisfied by the plaintiff, as surety for the defendants, and he is therefore entitled to recover a judgment against John E. McDonald as well as against the other defendant.

Defendants defaulted.