Harris v. Hayes
Massachusetts Supreme Judicial Court
Contract, against the surety upon a poor debtor’s recognizance. At the trial in the Superior Court, before Sherman, J., it was agreed that the plaintiff recovered judgment against one Hayes on March 2,1896; that, execution having issued thereon, Hayes was cited to appear at the Municipal Court of Boston at the poor debtor session thereof, and was defaulted and arrested by the order of the court, and he thereupon entered into a recognizance with the defendant as his surety,…
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Contract, against the surety upon a poor debtor’s recognizance. At the trial in the Superior Court, before Sherman, J., it was agreed that the plaintiff recovered judgment against one Hayes on March 2,1896; that, execution having issued thereon, Hayes was cited to appear at the Municipal Court of Boston at the poor debtor session thereof, and was defaulted and arrested by the order of the court, and he thereupon entered into a recognizance with the defendant as his surety, which is the recognizance declared upon; that Hayes applied to take the oath for the relief of poor debtors at said…
1Opinion of the CourtHolmes, J.
The fact that the plaintiff had proved a claim in insolvency upon a judgment against a judgment debtor is not a bar to an action against a surety on a recognizance to appear for examination as a poor debtor, entered into by the same debtor when execution issued against him. Whether it would be ground for a continuance, or for a stay of execution until it could be ascertained what dividend the plaintiff would receive in the insolvency proceedings, is not before us. It may be that it would be proper to provide for the dividend being deducted from the defendant’s liability. See Demelman v. Hunt,…
2Cases cited1 opinion
- Demelman v. HuntMassachusetts Supreme Judicial Court · 1897