Sigler and others v. Shehy and others.

LORIN SIGLER and others vs. DANIEL SHEHY and others.

In case of an appeal from the Common Pleas to 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 general execution be issued against the bankrupt, and returned no goods, &c., an action will not lie against the sureties in the appeal bond.

To charge the bail, a judgment or decree must have been rendered against the appellant personally, and an execution against him have been returned nulla bona.

THIS is a WRIT OF ERROR to the Supreme Court for the County of Trumbull, made returnable in Bank.

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, a 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 of 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 action. 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

IN BANK. Dec. Term

1846.

Sigler and others v. Shehy and others.

IN BANK. and tenements, of the said Walter Sigler, in the hands of the Dec. Term, said assignee. Execution was taken out against the goods and 1846. 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. & 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.

Sigler and others v. Shehy and others.

Dec. Term,

1846.

The statute authorizing and giving validity to appeal bonds, IN BANK. 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 not alter the

Dec. Term,

1846.

McCombs v. The Town Council of Akron.

IN BANK. matter. If the assignee prosecute for creditors generally, costs at least should come out of the assets going to the general creditors. This prosecution should not be at the risk of the appeal bail. It is said that this is like a case of death, and a prosecution by representatives. It is not like it at all. Death operates upon the life of the person, 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 not analagous.

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

BIRCHARD, J., having been of counsel with one of the parties in the cause, took no part in this decision.

HITCHCOCK, J., dissented.

JOSEPH MCCOMBS VS. THE TOWN COUNCIL OF AKRON.

A municipal corporation, like an individual, is liable for injuries resulting to the property of others from the acts of such corporation, though acting within the scope of its corporate authority, and without any circumstances of negligence or malice.

THIS is a WRIT OF ERROR to the Supreme Court of SUMMIT County, returnable in Bank, brought to reverse a judgment of that Court, affirming the judgment of the Court of Common Pleas.

The original action was in case against the Town Council of Akron for cutting down a street, whereby the house and lot of the plaintiff suffered an injury.

McCombs v. The Town Council of Akron.

Dec. Term,

1846.

Plea, the general issue, and notice that the act of incorpora- IN BANK. tion and the ordinances of the town conferred the full power to cut down and grade the street, and that it was done in a legal and judicious manner.

Verdict and judgment for the defendant,

The bill of exceptions shows, that the plaintiff's house and lot were situated on the street and sustained an injury by cutting it down and grading it, but from no other act. The defendant introduced a certain contract of purchase from the proprietor of the town, by the plaintiff, which contemplated a future grading of the street, and proved that he received his deed under said contract, before the street was graded. Proof was also offered tending to disprove the plaintiff's claim.

The plaintiff's counsel asked the Court to charge the jury, that, if the plaintiff's property had sustained a real and substantial injury by reason of defendant's act in grading the street, that the plaintiff might recover, even though the corporate authorities had acted strictly within their legal authority and without any intent to injure the plaintiff's property. The Court refused so to charge, and this was assigned for error.

The Supreme Court on the circuit affirmed the judgment of the Court of Common Pleas, and to reverse this judgment this writ of error is brought, the error assigned being, that the Supreme Court erred in affirming the judgment of the Common Pleas.

King & Taylor, for the Plaintiff in Error.

The case was submitted for the plaintiff without argument.

Lucius V. Bierce, for the Defendant.

This cause presents a new question. In all the cases bearing any analogy to this, heretofore decided by this Court, there has been "illegality, excessive use of authority, malice, or an 'indirect injury by the act of the defendant to the land of the