This case seems a clear one for the respondent. The allegations in the complaint were not put in issue by the answer, and upon the trial were taken to be true. Thus a cause of action resting upon express contract was established, and the only questions before the court were upon the new matter set up by the defendants. It was insufficient. Their undertaking was to pay on demand the amount of any judgment which might be recovered in an action then pending against one McCrillis, not exceeding a sum named. Upon the faith of this promise an attachment and the lien thereby acquired, and then held upon certain property by the plaintiff's assignor was discharged. There was therefore a good and valuable consideration for the defendants' undertaking. Judgment was recovered, a demand made for its payment, and default therein. It is not a good answer to such a charge that the judgment debtor was at any time subsequently declared a bankrupt, and an assignment made. There was then no attachment lien, nor any attachment *Page 117 in force upon which such proceedings could operate, and this fact is conclusive against the defendants' claim so far as it rests upon the provisions of the bankrupt law. The appellants have no concern with any question which might otherwise arise under it, for their undertaking was voluntary, not the result of coercion, and by their intervention the plaintiff was deprived of security which it must be assumed as against them would have produced the money for the recovery of which the action was brought. The defendants' contention is "that the attachment was dissolved by operation of law, and that the plaintiff could not recover against McCrillis, the principal debtor." The law thus referred to is, I suppose, the bankrupt law, and if so, there is error in the statement for the reason above given, and as to the latter branch of the proposition it is inconsistent with the concession in the pleadings, and finding of the court thereon that judgment was in fact recovered against the debtor, and more than this, it appears that the bankruptcy court, though twice applied to, refused to interfere with the proceedings in the original action, and it went on to judgment. Whatever effect the provisions of section 5044, R.S. of U.S., might have had upon the attachment, they cannot avail the defendants in this action, when called upon to perform their promise. By reason of it the debtor's property was restored to him and became subject, whether in his own hands or those of his assignee in bankruptcy, to the claims of creditors. Neither the letter nor the policy of that statute is infringed by holding defendants liable upon their undertaking. (Wolf v. Stix, 9 Otto, 1; Cutter v. Evans, 115 Mass. 27;Braley v. Boomer, 116 id. 527; Holyoke v. Adams, 59 N.Y. 233. )
It is also urged as error in the trial court that it refused to find in accordance with certain requests made by the defendants' counsel. The court found contrary thereto, and there was evidence to warrant the finding.
The judgment should be affirmed, with costs.
All concur, except FINCH, J., absent at argument.
Judgment affirmed. *Page 118