
    Alice C. Cochrane vs. Elizabeth A. Cushing, executrix.
    Suffolk.
    March 6.—10, 1878.
    Colt & Soule, JJ., absent.
    In an action on a joint bond, the executor of a deceased obligor cannot be sued jointly with the surviving obligor.
    Under the U. S. Rev. Sts. § 5118, the discharge in bankruptcy of the principal doe* not release the surety on a bond.
    Contract, against the executrix of Henry W. Cushing, on the following bond, executed by the obligors :
    “ Know all men by these presents, that we, Charles W. Cochrane, of Chelsea, in the county of Suffolk and Commonwealth of Massachusetts, as principal, and Henry W. Cushing, of Boston, in the county of Suffolk, aforesaid, as surety, are holden and stand firmly bound and obliged unto Alice C. Cochrane, of said Chelsea, widow, in the full and just sum of f1000, to be paid unto the said Alice C. Cochrane and her legal representatives : to which payment well and truly to be made we bind ourselves, our heirs and legal representatives. Sealed with our seals, dated this fourth day of November, in the year of our Lord one thousand eight hundred and sixty-seven.
    “The condition of this obligation is such that whereas the said Alice C. Cochrane has this day released all of her right, title and interest, whether by dower or otherwise, in and to a certain parcel of real estate, situated in Chelsea, aforesaid, to the said Charles W. Cochrane ; now, therefore, the said Charlea W. Cochrane, in consideration of said release to him, does hereby agree that he will maintain and support the said Alice C. Cochrane during her life, or while he may live himself, and provide her with necessaries of life suitable to her station and position, and will attend to her comfort and well-being. Now, therefore, if the said Charles W. Cochrane shall well and truly keep and perform the within conditions, this bond is to be of no effect; otherwise, to remain in full force and virtue.” Writ dated May 23, 1876.
    At the trial in the Superior Court, before Gardner, J., the defendant requested the judge to rule that the action could not be maintained against the defendant alone ; and that, as it appeared that the principal named in the bond had, on March 18, 1871, obtained a discharge in bankruptcy, the surety was released from further liability.
    The judge declined so to rule. The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.
    
      B. E. Perry, for the defendant.
    
      T. Weston, Jr., for the plaintiff.
   By the Court.

The executrix of the deceased obligor could only be sued separately. She could not have been sued jointly with the surviving obligor. New Haven & Northampton Co. v. Hayden, 119 Mass. 361. The discharge in bankruptcy of the principal did not release the surety. U. S. Rev. Sts. § 5118.

Exceptions overruled.  