Goodwin v. Stark

15 N.H. 218

• Court: Superior Court of New Hampshire
• Decided: July 15, 1844
• Status: Published

Opinion

Parker, C. J.

The plaintiffs having obtained judgment against Gillis, caused him to be arrested on the 81st of January, 1842, and thereupon he, with the defendant and Cragin, executed the" bond upon which tins suit is founded, the condition of which is, that Gillis should take the poor debtor’s oath within one year from the date, or surrender himself at the jail at the expiration of that time, so that he could be arrested. Gillis did not comply with either branch of the condition, and the bond is, therefore, forfeited according to the terms of it. But, after the bond was executed, Gillis filed a petition in bankruptcy, and within the year obtained his discharge as a bankrupt; and the question is, whether the sureties can defend against the alleged breach of the condition, upon the ground that the discharge in bankruptcy discharges the obligation of the bond.

It may admit of question whether Gillis himself is discharged by his certificate in bankruptcy from the obligation of this bond. The bond itself is not a debt, but is an obligation with a penalty for the performance of one of two acts. It is intended, in some measure, for the security of the debt upon which the principal was arrested, and is so far dependent; upon the existence of the debt, that the extinguishment of the debt by payment, if it did not discharge the bond, would furnish good cause for a stay of all proceedings upon it. Perhaps it is not quite clear that payment even would operate as a technical discharge of its obligation. But the discharge in bankruptcy is not payment, nor is the debt entirely extinguished by it as by a payment. It would still form a good consideration for a new promise. Cowp. 544, Trueman vs. Fenton ; 2 H. Black. 116, Besford vs. Saunders; 4 Camp. 205, Penn vs. Bennet; 8 Mass. 127, Maxim vs. Morse; 7 Johns. 36, Scouton vs. Eislord; 1 Cowen 249, Erwin vs. Saunders; 14 Johns. 178, Shippey vs. Henderson.

It is not necessary, however, to decide whether the plaintiffs had a right to require a performance of the condition, as against Giffifl, after he had procured Ms discharge and certificate. It is sufficient, for the purposes of this ease, that the sureties cannot avail themselves of the discharge in bar of their obligation. In Donnelly vs. Dunn, 1 B. & P. 450, the court held that bail could not plead the bankruptcy and certificate of their principal in their own discharge. Lord Eldon, C. J. said, the plea of bankruptcy is given to the bankrupt to be made use of as the means of discharging himself, if he so please. But there may be many cases in which the bankrupt may not choose to malte use of Ms certificate. If ho has boon guilty of fraud, he may be fearful of bringing it forward, fee. He added that the court did not mean to preclude any application for summary relief on the part of the bail, but that the opinion of the court was that on that record judgment must be given for the plaintiff. Bee, also, 1 B. & P. 450, (note b,) Beddome vs. Holbrooke.

In this case, the defendant has not pleaded the discharge of the principal; but the case comes before us upon a statement of facts, in which the parties agree that, if the court shall be of opinion that the sureties are discharged, judgment is to be rendered for tbe defendant; otherwise for the plaintiff for Ms costs. If bail would not be discharged by the discharge in bankruptcy of the principal, a fortiori, the sureties in a bond like the present cannot be so, where a judgment has been rendered, the debtor arrested upon the execution, and security taken, not merely for his appearance to answer to an action, but that he shall take the poor debtor’s oath, or surrender himself at the jail at a certain time.

We are not entirely satisfied at the present time that we could have stayed proceedings in this suit upon an application for that purpose. In the 4th section of the act it is “ provided that no discharge of any bankrupt under this act shall release or discharge any person who may be liable for the same debt as a partner, joint contractor, indorser, surety or otherwise, for or with the bankrupt.” The defendant is not precisely within the proviso. He is not surety for the debt. How far he is entitled to stand in a better situation than a surety for the debt, we need not now consider.

Judgment for the plaintiff.