New England Steam & Gas Pipe Co. v. Parker

76 Mass. 333

• Court: Massachusetts Supreme Judicial Court
• Decided: March 15, 1858
• Status: Published

Opinion

Metcalf, J.

The plaintiffs are entitled to judgment on this statement of facts. The condition of the bond, which the defendants executed as sureties, has been broken. Judgment was recovered against the principal before he applied for a discharge under the insolvent laws, and neither he nor the defendants paid the amount of the judgment within thirty days after it was rendered. The discharge of the principal from that judgment, and from his obligation on his bond, does not discharge the defendants from their obligation. It is provided by St. 1838, c. 163, § 7, that no discharge of any debtor, under that statute, shall release or discharge any person who may be liable for the same debt as a surety for the debtor. Judgment must therefore be' entered for the penalty of the bond, and the defendants will be heard in chancery as to the sum for which execution shall issue. If the plaintiffs have proved their judgment against the principal before the commissioner of insolvency, the defendants may probably have the amount of the dividend, which is decreed thereon, deducted from the sum for which they would otherwise be liable. This, however, and other questions, cannot be definitely settled previously to the hearing in chancery.

Judgment for the plaintiffs.