
    William G. Harris vs. Mary J. Hayes.
    Middlesex.
    March 15, 1898.
    May 20, 1898.
    Present: Field, C. J., Allen, Holmes, Knowlton, & Lathrop, JJ.
    
      Poor Debtor — Breach of Recognizance — Proof of Claim in Insolvency — Bar to Action.
    
    The fact that a creditor has 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. But whether it would be ground for a continuance, or for a stay of execution until it could be ascertained what dividend the creditor would receive in the insolvency proceedings, quosre.
    
    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 Municipal Court on March 26, 1897; that a hearing was continued from time to time; that upon May 21, 1897, at 10 a. m., he was defaulted; that he filed his petition in the Court of Insolvency for the county of Suffolk on April 8, 1897, and that the warrant was issued returnable on April 30, 1897; that the warrant was returned on that day without service, and a new warrant was issued returnable on May 14, 1897; that Hayes filed his schedule of property and creditors on April 28, 1897; that the first publication of the new warrant was on May 6, 1897; that the first meeting of the creditors was held on May 14, 1897, when the plaintiff proved the judgment against Hayes, and that the same was allowed; that the second meeting was' held on July 2, 1897, and the third meeting had been ordered for November 12, 1897, and the question uf k:s discharge in insolvency had not yet been reached.
    
      The judge directed the jury to return a verdict for the plaintiff ; and the defendant alleged exceptions.
    
      E. L. Buffinton, for the defendant.
    N. F. Hesseltine, for the plaintiff.
   Holmes, 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, 168 Mass. 102.

Exceptions overruled.  