Harris v. Hayes

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.