Bernheimer v. Charak

• Decision Date: 08 January 1898
• Citation: 170 Mass. 179,49 N.E. 81
• Parties: BERNHEIMER et al. v. CHARAK et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

170 Mass. 179

49 N.E. 81

BERNHEIMER et al. v. CHARAK et al.

Supreme Judicial Court of Massachusetts, Suffolk.

January 8, 1898

COUNSEL

Charles A. Jewell, for appellants.

Godfrey Morse, E.N. Hill, and Lee M. Friedman, for appellees.

OPINION

KNOWLTON J.

Unless affected by some statute which applies directly to bonds like that in suit, it is clear that the liability of the defendants is not changed by the insolvency and the discharge of the principal in the bond.Pub.St. c. 157, § 85;Gass v. Smith, 6 Gray, 112;Gas-Pipe Co. v. Parker,10 Gray, 333;Cutter v. Evans,115 Mass. 27.In Tapley v. Goodsell,122 Mass. 176-182, Chief Justice Gray said of a similar bond: "The bond is not affected by contingencies which might have discharged an attachment if no bond had been given.Neither the death nor bankruptcy of the principal discharges the surety from his obligation to satisfy a judgment lawfully rendered against the principal or his representatives, but such a judgment, in the absence of fraud or collusion, is conclusive against the surety."The defendants rely upon St.1889, c. 470.Prior statutes of the same series are St.1884, c. 236, St.1888, c. 405, andSt.1889, c. 406.The first of these provided for a composition by a debtor with his creditors in the court of insolvency, and for the granting of a discharge to the debtor, but it contained no express provision in regard to bonds given to dissolve attachments.St.1888, c 405, provides that an obligee in a bond given to dissolve an attachment may have a special judgment against the surety on the bond in cases where the principal is discharged by proceedings for composition, so that no judgment can be obtained against him in the original action.This expressly extends section 23, Pub.St. c. 171, to such cases, if it did not apply to them before.The legislation up to this point contained no provision for the dissolution of the attachment by proceedings for a composition in insolvency, for however short a time the attachment might have been in existence, but left security of that kind in full force after the debtor had obtained his discharge.To give the debtor relief in such cases, and to compel creditors who had attached property just before the proceedings in insolvency to share equally with the others when a composition is made, St.1889, c. 406, was passed which declares that the granting of a discharge shall dissolve such attachments made not more than four months prior to the time of giving notice by the register of the proposal for the composition.Apparently by an oversight this statute failed...