Wilcox v. Rosenfield

TANNER, P. J.

This is an action of debt in which the plaintiffs declare upon a written bond, signed by the defendants, acknowledging themselves bound to the plaintiffs in the sum of $400. Without reciting any condition to said bond the declaration goes on to aver that the defendants, though requested, have not paid the said sum of $400:

The defendants have filed a plea in abatement admitting the execution and delivery of the bond declared on, but reciting that one -of the defendants since the execution and delivery of said bond has procured a discharge-in bankruptcy, whereupon the other defendants were released and discharged' from said writing obliga1 tory.

For plaintiff: E. C. Stiness and D. H. Morrissey. For defendant: Beilin & Beilin.

This case is heard upon a demurrer to said plea in abatement.

This case was argued to the Court as though it raised the question of whether or not a statutory bond given to release an attachment of goods, which bond was to become void upon payment of any judgment recovered in an action upon which the attachment was made, would be released by the bankruptcy of the defendant in the attachment suit within four months after said attachment.

On examining the pleadings we are unable to see how any such question is raised. The bond declared upon appears to have been merely a common law bond without condition. Such a bond would not be released by the bankruptcy of one of the obligators as to the remaining obligators. Technically, therefore, the demurrer must be sustained.