
    In Bank.
    Dec. Term 1846.
    Lorin Sigler and others vs. Daniel Shehy and others.
    In casé of an appeal from'the Common Pleas tp’the Supreme Court, if the appellant, before judgment in the Supreme Court, becomes a certificated bankrupt, and his as signee be permitted, under the bankrupt laW, ’to prosecute in his stead, and a decree for costs be rendered in favor of the appellee,-to-be charged upon the assets of the bankrupt in the hands of the assignee, and a ge'neral execution be issued against the bankrupt', and returned no goods, &c., .an'action will not lie against the-sureties, in $xe appeal -bond. ‘ * * * . ■ ’’ .* ' t \ ' ;
    To. ohárge tlie bail,'a judgment or decree must have been -rendered against the appel- : lant*personally, and an ‘execution’against hlm’havé-bQen returneÜ'nulla.bo'na.' •
    ' ■ • This is a Writ or Error, to the Súbeme Court for the-.'. County of Trumbull,• made returnable, in Bank,;'1 1 . N-; .
    .’ The original action was in. debt upon an appeal bond.' From, the bill' of exceptions tendered and allowed during the progress ■ of the trial in the Court of Common Pleas,, the following statement of facts is .drawn:' - •
    Walter Sigler, filed a certain bill in'Chancery againt Shehy. and Smith-. - At' the same term, 1841, á decree' was pronounced in favor of the respondents, Shehy and Smith. An appeal was taken to the Supreme Court, and bond executed by WalterSigler, as principal, and Lorin Sigler and Robert Russell, as ■ sureties, conditioned, that if the said Walter Sigler should pay the full amount pf the condemnation money in the Supreme Court,' and costs, in case a decree should be entered therein in favor of the appellee, then the obligation should be void. Prior • to.the final decree in the Supreme , Court, Walter Sigler become a certificated bankrupt. ■ At the September term, 1842, of the Supreme Court, Alexander McConnell, the assignee of Sigler in bankruptcy, .was made party complainant by consent. At the August term, 1844, said assignee filed his supplemental bill, and' prosecuted the original actioh. On final hearing, the Court dismissed-- the bill, and decreed that the complainant should pay the costs of suit, taxed at $148/29, and- that execution issue to collect the same of' the'goods and chattels, lands- and tenements, of the said Walter Sigler, in the hands of the said assignee. Execution was taken out against the goods and chattels of said Sigler, and returned no goods or chattels, &c. Thereupon, this action was commenced against the sureties in the appeal bond, and the case was tried at the March term, 1846, of the Court of Common Pleas of Trumbull county, by the Court, without the intervention of a jury. For the defence, it was contended that the condition of the bond had not been broken, inasmuch as there had been no decree against the appellant, such as contemplated by the statute, and no proper execution issued and returned nulla bona. But the Court held otherwise, and gave judgment upon the bond against the plaintiff in error.
    A bill of exceptions was tendered and signed, and the errors assigned were, that the Court erred in holding that the condition of the bond had been broken, and in rendering judgment as aforesaid.
    To reverse this judgment, the plaintiff in error sued out a writ of error from the Supreme Court, which came on for hearing at the last term of that Court, in Trumbull county, and the judgment of the Court of Common Pleas was affirmed.
    To reverse the judgment of the Supreme Court, affirming the judgment of the Court of Common Pleas, this writ is prosecuted.
    
      M. Sf C. G. Sutliff, for Plaintiffs in Error.
    
      John Crowell, for Defendants.
   Read, J.

The whole question in this case is, whether, the appellant having been discharged, the sureties in the appeal bond shall remain responsible; whether decree of the Court, that a certain sum shall be charged upon the assets of the appellant, in the hands of his assignee in bankruptcy, will authorize a general execution, so as to fix the liability of the bail' under the statute.

The statute authorizing and giving validity to appeal bonds, contemplates a decree or judgment against the appellant, and an effort at satisfaction by execution against him, before the bail can be held liable. In this case, the bankrupt law has stept in and withdrawn the principal liability, and discharged the debt, except so far as the assets in the hands of the assignee, distributed pro rata among creditors, will pay it. — ■ After the appellant has become a certificated bankrupt, no decree or judgment can be rendered against him. He is withdrawn from the action of the Court, and discharged from the debt, which is transferred over upon his assets. Now, if the debt or obligation to pay is transferred to the assets of the principal, why should it remain against the bail ? Because, it is said, the bail, by their bond, obligated themselves to pay whatever should be adjudged or decreed against their principal. But nothing has been adjudged or decreed against the principal. The effect of the whole matter was to discharge the principal, and hold his assets.

Thus, by operation of express law, the whole relations of the parties have been changed. The intent of the bankrupt law was to affect the rights of the party to whom the debt was due.— Why, then, should the creditor, to whom the debt is due, withdraw himself from the operation of the law, and substitute the appeal bail for his debt ? His debt is paid in the manner pointed out by the bankrupt law. Why should it be permitted'to exist, by being withdrawn from that law, to its full extent, against the bail? The equities between the bail and appellee are equal, and the appellee held his debt subject to the contingency of bankruptcy. The risk is his: all debts are held subject to this contingency, if it happen by the exertion of a bankrupt law. The bail bond, therefore, should be construed strictly; and unless decree or judgment should go against the appellant, and a general execution for satisfaction, as contemplated by our own statute, the bail must be discharged. It may be said the act of bankruptcy contemplated a prosecution of suits by the assignee, already commenced by the bankrupt. This does riot alter the matter. If the assignee prosecute for creditors generally,, costs at least-should.- come, out of the assets going to the- general- creditors. This prósécütion should not be at the risk-of the appeal 'bail. It is'1 said that this- is like- a case of death, arid a prosecution by representatives.- It is not like it at all. Death operates upon the life;, of the p'érsón, and the' bankrupt law upon the obligation to-pay. The one leaves the debt in full force; the other satisfies-it in a particular form.. . Hence.it is apparent the cases are nót análagous.

We are' of opinion that the Supreme Court erred in affirming the judgment of' the . Common Pleas, and therefore reverse thejudgment. ■' ,

Birchard, J:; having been of counsel with one-of the parties in the causé, took'nó'-part in this decision. - '

Hitchcock, J., dissented.  