delivered the opinion of the Court:
Appellee brought an action of assumpsit against James Allison and sued out an attachment in aid, which was served on one Sternheim, as garnishee, who had property of Allison in his possession. Allison appeared in open court and entered into a recognizance, as provided in section 15 of the Attachment act, with appellant as surety. The attachment was thereupon dissolved, and the proceeding against the garnishee set aside. Before judgment, Allison died ; suggestion of his death having been made, his administrator was made party defendant and the case proceeded to judgment. That judgment not having been paid within ninety (90) days after its entry, as conditioned in the recognizance, the present writ of scire facias was sued out against the surety. The question presented by the record is, whether the failure to pay the judgment against the personal representative of Allison was a breach of the condition of the recognizance.
The recognizance in this case was in substantial compliance with the statute, the purpose of which is to enable the defendant to obtain control of the property attached, or in the hands of garnishees, upon giving security for' the payment of the judgment to be rendered in the cause in which the recognizance is given. Upon giving the bond or recognizance the case proceeds in personam j the judgment entered is a personal judgment, the recognizance standing as security for its payment. Hill v. Harding, 93 Ill. 77. The language of the statute is, that the recognizance shall be “ conditioned that the defendant will pay the plaintiff the amount of the judgment and costs, which may be rendered against him in. that suit on a final trial, within ninety days after such judgment shall be rendered.” And the recognizance. here was conditioned for the payment “ of whatever judgment may be entered herein against said defendant upon a final trial hereof,” etc. At the time of entering into this recognizance, section 11, chapter 1 of the Revised Statutes provided, that upon the death of a sole defendant the action should not on that account abate, in cases where the cause of action would survive, etc.; but upon suggestion of the death upon the record, summons might issue against his administrator and the cause “ proceed as if it had been originally commenced against him.”
The giving of the recognizance is a right accorded by law to the defendant, which the plaintiff must accept, if the right is properly exercised. Its effect is to release the property attached, and to discharge the garnishee from liability for property of the attachment debtor in his hands. To effect this purpose appellant voluntarily joined with the attachment debtor, and took upon himself the obligation prescribed by the statute, to pay whatever judgment might be rendered in that action. He was bound to know, that upon the death of Allison, the suit would not abate, but might proceed to final judgment against his personal representative. The statute provides that the defendant may enter into a recognizance to secure the judgment that may be rendered “against him” in that suit. The law being that, upon the death of Allison, the suit might proceed against the administrator, it must be held that the undertaking of appellant was made in contemplation thereof, and was to stand as security for the judgment rendered against the defendant “in that suit, on final trial.” Any other construction of the statute would not only be inconsistent with the language employed, but would lead to the most absurd and unjust results. In contemplation of law, the judgment against his personal representative in the same proceeding is a judgment “against him within the meaning of the language, employed. If this be not so, the legislature must have intended to deprive the plaintiff of the security afforded by the service of his attachment, in all cases where the defendant dies before the entry of final judgment. Such a construction is not consistent with the language employed, or the spirit and purpose of the act. Churchill v. Abraham, 22 Ill. 455; Brown v. Gorton, 31 id. 416.
It may be conceded, without at all affecting the question here involved, that a surety may stand upon the very terms of his contract, and if he does not assent to its variation, and a change is made affecting his liability, he can not be bound thereby. This case is clearly distinguishable from those where a common law or voluntary bond is executed; and from those also, where there has been some change in the liability of the surety by the act of the parties seeking to enforce it, as in Tucker v. White, 5 Allen, 322; Richard v. Stover, 114 Mass. 101; and other similar cases cited by counsel for appellant. The liability of appellant, as surety, was in no wise increased or changed, because by operation of law the action survived against the personal representative. And we hold that the effect of appellant’s undertaking was to pay the judgment recovered “ in that suit ” in the usual course of law. Bean v. Parker, 17 Mass. 602; Quillion v. Arnold, 12 Nev. 234; Poole v. Dyer, 123 Mass. 363.
In the latter case the goods of Ellen and John Dyer had been attached at the suit of Poole. A bond was given to pay the judgment “in such action ” and the attachment dissolved. The plaintiff discontinued as to Ellen Dyer and took judgment against John Dyer only. It was held that the non-payment of this judgment was a breach of the condition of the bond. There, although the parties to the action were changed by the voluntary action of the plaintiff, the court said : “ The result, so far as the surety is concerned, is the same, whether the plaintiff discontinues against one defendant, or fails to recover against him upon the trial. Ho change is made in the nature of the claim which is the subject of the suit, and no greater and different liability is cast upon the surety by the discontinuance.” We need not pursue the discussion farther. The obligation being statutory, must be construed so as to give effect to the purpose and intent of the statute.
Other errors are assigned which we have carefully examined, and find either that they do not arise upon the record in this court, or are not of sufficient merit to warrant discussion.
The judgment of the Appellate Court will be affirmed.
Judgment affirmed.