Fowler v. Kendall

May, J. In this action the defendant, Kendall, relies upon his discharge in bankruptcy as a defence. The other defendants are defaulted. The validity of the proceedings in bankruptcy is not denied. The only question raised is as to their effect in regard to the several items which the plaintiff claims to recover under the bond in suit. These claims, it appears, are for monies received and liabilities incurred by the principal defendant, while acting as a deputy sheriff under the plaintiff; and it is contended that a surety for the performance of the obligations and legal duties of the principal, arising out of this official or fiduciary relation, stands in the same position as the principal, for whose fidelity he is bound; and that, therefore, his certificate in bankruptcy presents no obstacle to the plaintiff’s recovery against him. [458] We do not so understand the law. The surety can in no proper sense be regarded as having violated any official or fiduciary trust. His sole responsibility rests in his contract. That clause in the Bankrupt Act, excepting from its operation all debts created in consequence of a defalcation as a public officer, or in a fiduciary capacity, has reference only to the defalcations of the bankrupt himself. No legal disability or odium attaches to the surety. His certificate, therefore, will be regarded as a discharge of such liability, when it appears that the debt against the principal and surety might have been proved under the Bankrupt Act. The bond in suit was a continuing indemnity, and each and every breach of it was a good cause of action, affording to the plaintiff an ample remedy when, and only when, they severally occurred. All his claims, therefore, resulting from any breach prior to September 23, 1842, when the defendant, Kendall, filed his petition to be declared a bankrupt, are barred by his discharge, while all other claims originating in any subsequent breach of the bond will not be affected thereby. These claims could not have been proved under the Bankrupt Act, as the numerous authorities cited for the plaintiff clearly show. In accordance with these views, the plaintiff’s claim “ for per centage,” and for the amount paid by him in July, 1852, upon a judgment recovered against him for the default of Burrill, cannot be recovered as. against the defendant, Kendall, the same being barred by his certificate; but the defendant must be held liable for the amount paid by the plaintiff, March 6, 1846, upon the execution against him in favor of -Church Williams — such payment constituting a new breach of the bond, after the proceedings -in bankruptcy had been closed. Upon the facts stated, the defendant, Kendall, is to be defaulted, and judgment is to be rendered against all the defendants for the penalty of the bond; and execution is to issue against them for $53.10, and interest from March 16, 1846; and. another execution is to issue against the other [459] two defendants for the other items which the plaintiff claims, with interest from the times when each, according to the terms and condition of the bond, should have been paid. Defendant, Kendall, defaulted. Tenney, C. J., Rice, Appleton, Hathaway, and Davis, J. J., concurred.