
    John Flagg, Jun., versus William N. Tyler, Administrator.
    To an action against a surety m a replevin bond, it is no sufficient answer, that the principal has since become bankrupt, and obtained a certificate of dis charge, and that the property in the chattels having, by force of the commission of bankruptcy, vested in the commissioners, it had become, by the act of law. impossible to fulfil the condition of the bond.
    Debt on a replevin bond executed by William Neal as principal, and William Tyler, the defendant’s intestate, as surety, being the same bond which was in the case of Flagg vs. Tyler, [ante, vol iii. 303.] The original defendant having deceased, and his administrator having been admitted to take upon him the defence of the action before the former judgment was pronounced, a repleader was awarded by consent.
    Upon oyer of the bond and condition, the present defendant pleads in bar, that the goods replevied were the property of Neal, and held as such by Flagg, attached on mesne process at the suit of one Hastings against Neal, in which suit Neal was defaulted in this Court, April term, 1803 ; that the writ of replevin was served on the-day of-, 1801, and was entered and continued in the Common Pleas until March term, 1803, when Neal became non-suit ; that on the 23d of April, 1802, while both the said suits were pending in Court, a commission of bankruptcy issued against Neal, which was duly proceeded in, and Neal, on the 21st of August, 1802, and pending said suits, duly obtained his certificate of discharge; that the property of the goods replevied was thus, by act of law, vested in the commissioners of bankruptcy, whereby it became impossible for the obligors to perform the condition of the bond, at the time when, by the terms thereof, it should have been performed. [ * 34 ] * To this plea the plaintiff demurred generally, and the defendant joins in demurrer.
    
      Ward, in support of the demurrer, contended that this plea did not lie in any case for a surety.  But the plea, if the matter might be pleaded in this action, is too defective in substance to be supported. It does not aver that Neal was a trader, that the petitioning creditor’s debt was due, nor that the proceedings were regular, or the certificate fairly obtained.
    The question how far the plaintiff has been endamaged will be examined, when judgment for the forfeiture shall have been rendered, and the defendant shall apply to be heard in chancery. If the plea is substantially bad, the Court will not go into speculations, in this stage of the cause, as to the benefit the plaintiff may obtain from the suit. The whole matter pleaded arose from the principal’s own act,  and surely, if he had thought proper to destroy the goods, it would not lie in his mouth, or that of his surety, to plead that fact in avoidance of his bond.
    
      Fay for the defendant.
    This bond was not for the payment of the money, but for the performance of a condition, which was possible at the time of executing the bond, but has since become impossible by the act of the law, in which case the obligation is saved, and the bond void. 
    
    
      Hastings,
    
    the original creditor of Neal, at whose suit these goods were attached, and for whose use the present action must be brought, could have derived no benefit from their continuance in the plaintiff’s possession, because the commission of bankruptcy changed the property in them, and would also have abated his writ; and it would have been a good justification for the present plaintiff, when called on for the goods attached, that he could not legally hold them against the assignees of Neal. 
       Thus, where the principal debtor had become a peer, his bail were discharged. 
    
    As to the informality of the plea, Fay observed that a plea which he had prepared, and on which he relied, having *been mislaid, and being called on at the last term to [ *35 ] plead instanter, he drew this up at the bar ; and he was aware that it had defects. If, however, the Court should think that the facts, if well pleaded, would be a sufficient defence, he hoped he should yet be indulged with an opportunity to amend the plea.
    The action was continued nisi; and at the following March term in Suffolk, the opinion of the Court was delivered by
    
      
      
        U. S. Bank Law, § 34.
    
    
      
       3 Mass. Rep. 517.
    
    
      
      
        Co. Litt. 306.
    
    
      
       3 Wils. 307. — U. S. Bank Law, § 10.
    
    
      
      
        Doug. 45.
    
   Sewall, J.

It appears, from the pleadings in this case, that William Neal was principal in a replevin bond, in which the defendant’s intestate was a surety. Upon this bond given to the present plaintiff, certain goods in his hands were replevied at the suit of Neal, who claimed them as his property. Neal’s replevin was entered in the Court of Common Pleas, and after several continuances in that court, Neal, the plaintiff, became nonsuit. Nothing is said in the plea of the damages or costs to be paid, in case the plaintiff in the replevin neglected to prosecute his,suit to final judgment; but it is averred, that pending the replevin suit, Neal became a bankrupt, and duly obtained his certificate of discharge, and the property replevied vested in the commissioners of bankruptcy, &c., whereby it became impossible for the said Neal and Tyler to perform the condition of the bond.

This plea is objected to, as deficient of the requisite averments in a plea of bankruptcy, where a third person would avail himself of the transfer of property by the effect of the commission; and it is probably entirely deficient in this respect.

But, however this may be, there seems to be no ground for the supposed discharge of this bond by the bankrupt’s disability to perform the condition of it. The discharge of the bankrupt does not operate to release or discharge his partner, or any person bound with him for the same debt. And as to the impossibility of retain ing the goods, that is not the act of law, independent of the bankrupt’s * default. It is from his becoming a [ * 36 ] bankrupt, that the title of the commissioners to his goods is derived.

By the averments in the plea, it appears that the goods taken by the replevin were the goods of Neal, holden by the plaintiff unde? an attachment made by him, as a deputy sheriff, at the suit of enc Hastings; and by the operation of the bankrupt law this attachment, or the effect of it, for the benefit of the creditor of Neal, is perhaps avoided. This event may be important to be considered in determining in chancery what damages are to be awarded for the plaintiff, the obligee in the replevin bond, but will not discharge the bond itself, or excuse the forfeiture of it, when demand ed against a surety for the bankrupt.

The plea must he adjudged had and insufficient. 
      
       [If the attachment was dissolved by the operation of the bankrupt law, and the property passed to the commissioners, this would seem to furnish a good bar to any claim for a return. Wheeler vs. Train, 3 Pick. — Ed.]
     