Whitwell v. Burnside , 42 Mass. 39 ( 1840 )

De wet, J.

It appears that the judgment recovered by the petitioners against Brigham, at the March term, 1837, was for the entire amount of principal and accruing interest on the demand against him, computed to the time of the judgment, and also for all taxable costs to that time. It further appears, that no adjudication for any costs or damages, to he paid by the respondent, was made at or before the time of rendering final judgment and issuing execution against Brigham, nor at any subsequent time.

The remedy is sought for, in the present case, under the statute of 1823, c. 142. This statute was obviously very imperfect in its provisions, and somewhat difficult in its execution, as respects the various interests to be affected, and has since been superseded by the more full and explicit provisions of the Rev. Sts. c. 90, §§ 83-94.

It has been objected, that the amount for which an attaching creditor, who.comes in to defend, is to be held to pay, must be established by an adjudication, either preceding or concurrent with the entering up of judgment against the principal debtor. It is not necessary to express any opinion as to this objection, as we think there are other objections fatal to the prayer of the petition.

The foundation of this proceeding, and the only ground for an adjudication against the respondent, is a bond executed by him, and filed in the court of common pleas, at the time he was permitted to assume, as a subsequent attaching creditor, the defence of the petitioners’ action against Brigham. And it is supposed by the petitioners, that this bond authorizes an action against the respondent to recover such costs and damages as this’ court shall now decree to have been occasioned to the petition ers by the said defence to that action by the respondent. But upon examination of that bond, it seems to us fatally defective as the foundation of any action, or any judgment .by this court upon the subject submitted to us. The condition of the bond is for the payment of all such costs and damages as the court of common pleas shall adjudge and decree to have been occasioned, &c. We cannot extend the obligation of the respondent and his sureties beyond the plain and direct terms of the bond. Nor would such adjudication as is prayed for be the foundation of an action of debt, or proceeding by scire facias, as the statute remedy is clearly by suit on the bond

It also seems to us that this claim for costs and damages, oc casioned by the delay arising from the defence of an action by a subsequent attaching creditor, should not be enforced against the principal debtor and also against such attaching creditor. The liability of the attaching creditor, who defends a suit brought by anothei creditor, is not like that of bail, who are held on scire facias, in case of the default of their principal, to pay what the debtor should have paid ; but is rather an original liability, if the judgment creditor elects to rely upon his liability.

In the present instance, the judgment creditors entered up their judgment, and took out execution thereon for all those costs and damages which they now seek to have awarded against the respondent, and by so doing waived their claim, if any existed, upon the attaching creditor. Nor can the objection be obviated by releasing so much of the judgment against the debtor as is now demanded of the respondent.. Such a release would not be effectual to revive the claim against the subsequent attaching creditor. Nor does the objection of the inability of the debtor in the original suit to pay the judgment recovered against him, vary the legal rights of the parties ; the election having been once made, cannot now be waived, and the judgment creditors thereby reinstated in their right to ask a judgment against the re spondent.

Petition dismissed.