Majority
p. 630Hall vs. Fowler and Steadman.
Headnote
Bail in error remain liable, though the principal become bankrupt, and obtain his discharge pending the writ. Per Nelson, Ch. J.So of bail to the action, provided the discharge be granted after they have become fixed; though otherwise if granted before. Per Nelson, Ch. J.
Where, on appeal from a justice’s judgment, the appellee recovered, and the appel- ■ lant was afterwards discharged under the bankrupt act; held, that the liability of the surety in the appeal bond was not thereby affected.
Declaration in debt on a bond given upon appealing froni a justice’s judgment; Fowler being the principal in the bond, and Steadman a surety. The bond was.executed in May, 1842, and judgment was recovered against Fowler on the appeal in October following.
The defendants pleaded that Fowler was discharged under the bankrupt act in April, 1843, pursuant to a petition presented on the 11th of December, 1842.
The plaintiff demurred to the plea, and the defendants joined in demurrer.
S Chapman, for the plaintiff. .
B. F. Chapman, for the defendant.
The plea is no answer to the action so far as respects Steadman, although a surety, and is therefore bad. (Browne v. Carr and others, 2 Russell’s Rep. 600, 7 Bing. 508, S. C. ; Langdale v. Parry, 2 Dowl. & Ryl. 337.)
Even special bail are not discharged by the certificate of the principal, after they have become .fixed. (Woolley v. Cobbe, 1 Burr. 244; Mannin v. Partridge, 14 East, 598; Theob. Pr. & Bur. 207; Eden On Bankr. 415.) Before they become fixed, however, as their only obligation is to produce the body of the principal on the ca. sa., and as that is released from arrest by force of the discharge, they may be relieved.
p. 631
As bail in error cannot surrender their principal, they remain liable, though the principal become a bankrupt, and obtain his certificate pending the writ. (Southcote v. Braithwaite, 1 T. R. 624 ; Eden On Bankr. 415.)
Judgment for the plaintiff.