Lincoln v. Leshure
| Decision Date | 05 January 1882 |
| Citation | 132 Mass. 40 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | John Lincoln & others v. Abner P. Leshure & trustee |
Argued September 27, 1881
Hampden. Contract on a judgment recovered by the plaintiffs against the defendant in the sum of $ 132.20. The case was submitted to the Superior Court upon an agreed statement of facts, in substance as follows:
The attachment in the present action was made by trustee process on December 3, 1879. At the time of the service of the writ upon the trustee, the city of Springfield, there was in its hands the sum of $ 91.67, due the principal defendant. On May 8, 1880, the defendant gave a bond, with sureties, to dissolve the attachment, but the names of the sureties were not mentioned in the body of the bond. The condition of the bond was that the defendant should pay the amount recovered "within thirty days after the final judgment, or after any special judgment therein entered in accordance with" the St. of 1875, c. 68, § 1. On June 7, 1880, the defendant filed his petition in insolvency, on which petition a warrant issued, July 7, 1880. The proceedings in insolvency are still pending.
The plaintiffs moved that a special judgment be entered in the action "to enable them to proceed against the sureties upon the bond given to dissolve the attachment," in accordance with the provisions of the St. of 1875, c. 68 § 2.
This motion was disallowed; and the plaintiffs appealed to this court.
Order affirmed.
W. W McClench, for the plaintiffs.
W. L Smith, for the defendant.
It is not necessary to consider whether this is a sufficient bond under the St. of 1875, c. 68, § 2, because that statute does not authorize any special judgment upon the facts in this case. Section one of the statute provides that, when any defendant who has dissolved an attachment is declared a bankrupt, the court may enter a special judgment, to enable the plaintiff to proceed against the sureties upon the bond given to dissolve the attachment. This defendant has not been declared a bankrupt. The statute refers to the bankrupt law of the United States, which was in force when the statute was enacted, and not to the state insolvent law, which became operative upon the repeal of the bankrupt law, after the enactment of the statute.
The St of 1880, c. 246, § 8, amends the first section of the statute of 1875 by inserting the...
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Gray v. Arnot
...Baum v. Rapheal, 57 Cal. 361; Cerf v. Oaks, 59 Cal. 132; Lynch v. Roberts, 57 Md. 150; O'Neil v. Harrington, 129 Mass. 591; Lincoln v. Leshure, 132 Mass. 40; Nelson v. Winchester, 133 Mass. 435; Gay Raymond, 140 Mass. 69, 2 N.E. 782; Wright v. Dawson, 147 Mass. 384, 9 Am. St. Rep. 724, 18 N......
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