Andrews v. Fain

125 A. 357, 46 R.I. 165, 1924 R.I. LEXIS 76

• Court: Supreme Court of Rhode Island
• Decided: July 9, 1924
• Status: Published

Opinion

Bathbun, J.

This is an action of debt on bond against both principal and surety on a bond given to a sheriff to release an attachment of the property of the principal. Within four months after said attachment was made the principal was adjudicated a bankrupt. This action was commenced in the District Court of the Sixth Judicial District and was certified to this court on an agreed statement of facts. The bond in question was given to release said attachment. The condition of said bond was as follows: “Now therefore, if the final judgment in the action commenced by said writ shall be forthwith paid and satisfied after the rendition thereof (in case said judgment shall be rendered against said defendant), then this obligation shall be null and void, otherwise shall be and remain in full force and effect.”

It appears that the plaintiffs in the attachment writ obtained a final judgment against defendant Samuel Fain, the principal in said bond, and that said judgment has not been satisfied. Louis Fain, the surety on said bond, and the other defendant in this case, pleaded that Samuel Fain, the principal in said bond, was, within four months after said attachment, adjudicated a bankrupt. To this plea the plaintiffs demurred, and an agreed statement of facts having been filed as aforesaid, the action was certified to this court to be heard and determined.

We find from an examination of the papers that defendant Samuel Fain, the principal in said bond, pleaded that he had been duly discharged in bankruptcy. As the agreed statement of facts does not mention this plea and as neither counsel has referred to it we will assume that the plaintiff considers it a sufficient plea to bar the action against Samuel Fain.

In the consideration of this action the question arises whether an adjudication of bankruptcy of a defendant within four months after an attachment of his personal property which has been released by the giving of a bond containing the condition above quoted released the surety on the bond from liability to pay a judgment obtained by the plaintiff in the action commenced by the writ of attachment. This question has been considered by us in the case of Andrews v. Jones, 46 R. I. 141, in an opinion bearing even date herewith. In said opinion we answered the question in the negative and we answer in the negative the same question in this action.

Charles Z. Alexander, for plaintiff. Wilbur A. Scott, Frederick W. O’Connell, Swan, Keeney & Smith, for defendants.

Decision is hereby rendered for the plaintiffs for $300.00, the penal sum of said bond. The papers in the case, with the decision of this court certified thereon, are sent back to the District Court of the Sixth Judicial District with direction to enter final judgment for the plaintiffs upon said decision, and to award the plaintiffs an execution in said case for the sum of $211.09, with interest'from April 20, 1923 and $10.95 costs on the original action, and costs of this action.