Municipal Court v. McElroy

Supreme Court of Rhode Island

Municipal Court v. McElroy

36 A. 717, 19 R.I. 712, 1897 R.I. LEXIS 7

DecidedFebruary 12, 1897

StatusPublished

This text of 36 A. 717 (Municipal Court v. McElroy) is published on Counsel Stack Legal Research, covering Supreme Court of Rhode Island primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Municipal Court v. McElroy, 36 A. 717, 19 R.I. 712, 1897 R.I. LEXIS 7 (R.I. 1897).

Pincite

Opinion

Per Curiam.

The court is of the opinion that the defendant’s exceptions must be overruled. The plea of insolvency is no answer to the action. At the time the suit was brought the estate had not been represented insolvent, and, as decided on a previous demurrer, the plaintiff had a cause of action for a distinct breach of the bond. The judgment of the Common Pleas Division was therefore rightly entered for the penal sum of the bond. Upon chancerization the court can pass upon the effect of rendering the estate insolvent.

In view of the opinion and second head note printed in this case in 18 E. I. 719, the court thinks it proper to state that the case was before us on a general demurrer to the declaration because the suit had been brought upon the *713 bond witbin three years from the grant of administration. Inasmuch as the second count Qf the declaration alleged a specific breach of one of the conditions of the bond, for which an action could be maintained, the demurrer to the third count referred to in the opinion was necessarily overruled, because the plaintiff had a right to maintain the action upon the breach set up in the second count. The. court did not intend to be understood as saying that, under Pub. Stat. R. I. cap. 189, § 12, a suit could be brought on a bond within three years for some neglect to pay a debt not connected with a breach of any of the specific conditions of the bond.

Harry C. Curtis, for plaintiff. Hugh J. Carroll, for defendants.

Defendant’s petition for a new trial denied, and case remitted to the Common Pleas Division for further proceedings.

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Per Curiam.

The court is of the opinion that the defendant’s exceptions must be overruled. The plea of insolvency is no answer to the action. At the time the suit was brought the estate had not been represented insolvent, and, as decided on a previous demurrer, the plaintiff had a cause of action for a distinct breach of the bond. The judgment of the Common Pleas Division was therefore rightly entered for the penal sum of the bond. Upon chancerization the court can pass upon the effect of rendering the estate insolvent.

In view of the opinion and second head note printed in this case in 18 E. I. 719, the court thinks it proper to state that the case was before us on a general demurrer to the declaration because the suit had been brought upon the *713 bond witbin three years from the grant of administration. Inasmuch as the second count Qf the declaration alleged a specific breach of one of the conditions of the bond, for which an action could be maintained, the demurrer to the third count referred to in the opinion was necessarily overruled, because the plaintiff had a right to maintain the action upon the breach set up in the second count. The. court did not intend to be understood as saying that, under Pub. Stat. R. I. cap. 189, § 12, a suit could be brought on a bond within three years for some neglect to pay a debt not connected with a breach of any of the specific conditions of the bond.

Harry C. Curtis, for plaintiff. Hugh J. Carroll, for defendants.

Defendant’s petition for a new trial denied, and case remitted to the Common Pleas Division for further proceedings.

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Bluebook (online)

36 A. 717, 19 R.I. 712, 1897 R.I. LEXIS 7, Counsel Stack Legal Research, https://law.counselstack.com/opinion/municipal-court-v-mcelroy-ri-1897.