#### W. S. FONTAINE v. C. W. WESTBROOKS et al.

.A judgment rendered against a certificated bankrupt, merely to ascertain the amount of his indebtedness to the plaintiff, is not such a judgment as will make the sureties of said bankrupt liable therefor on an Appeal bond.

This was an action of assumpsit begun in the County Court • of Guilford County, wherein the plaintiff recovered a judgment against the defendants, "Westbrooks and Albright, from which the said defendants appealed to the Superior Court of "law of Guiltord County, and gave as sureties to their appeal ‘bond the defendants, ¥m. A. Donnell and ¥m. M. Albright, tried before Tcmrgee, J., .at a special ¡term of Guilford Superior Court, held in August, 1870.

During the pendency .of the appeal., the defendants, West-'brooks and Albright, were adj udged bankrupts on their own petition in the District Court-of the United States for the district of Pamlico.

The account of plaintiff 'being -disputed, the plaintiff, on the ¡25th February, 1869, filed a petition in said District Court against said bankrupts, alleging that .said .claim was litigated, aiid praying that he be permitted to prosecute his said suit to judgment.

The District Court made the following .cuider, upon the hearing of said petition: -

“It is determined, and 'the (Court .doth nosy so order and grant, that the plaintiff, ''Win. S. Fontaine, have leave to proceed to the trial of "his .said ¡cause, ;in -the ^Superior Court of ■Guilford County, and to -judgment in .-said (.Court, if the said Court shall determine that the plaintiff ¡is entitled to judgment, for the purpose of ascertaining -the amount due, but for no ■other purpose, .and to mo .other ,extent is this permission

*529The defendants, Westbrooks and Albright, filed their plea •of discharge in bankruptcy, embracing in said plea a copy of ftheir said discharges as bankrupts.

During the progress of the trial, at the said Special Term of ■Guilford Superior Court, the defendants, Westbrooks and Al-bright, proposed to offer evidence of their discharge as bankrupts ; this evidence was excluded by the Court, upon the .assurance of the plaintiff that he did not propose to take a judgment, to be enforced by execution, but merely to ascertain his debt. To which ruling of the Court, the defendants excepted.

There was a verdict for the plaintiff for $95.00, with interest thereon till paid, upon which his Honor rendered up judgment, .•and ordered that no execution issue against the defendants West-brooks and Albright, but that execution issue against their sureties on the appeal bond, for the amount of the judgment, inter•est and costs. Erom which defendants appealed, and assigned ¡as erroi’3:

1st. That the Court refused to allow evidence to be given to ¡sustain the plea of their discharge as bankrupts.

2d. That the Court entered up judgment against the defensdants, in favor of the plaintiff for ¡the amount of the recovery, with interest thereon till paid.

3d. That the Court rendered j udgment against the defendants, Westbrooks and Albright, who were admitted to be discharged ¡bankrupts, for the costs of the action to be taxed by the Clerk.

4th. That the Court entered up judgment against Wm. A. Donnell and W. M. Albright, sureties on the appeal bond, for ¡the amount of plaintiff’s recovery, against the defendants West-brooks and Albright, and the costs of action, and ordered that -•execution issue therefor.

Dillard c& Gilmer, for plaintiff.

Scott & Scott, for defendants.

Pearson, C. J.

There has been no such judgment rendered *530against the principals, as is contemplated in the appeal bond j consequently there has been no breach of th.e condition of the ' bond.

The judgment rendered, was simply to fix the amount for the purpose of proving it, as a debt in bankruptcy, as is provided under the 21st section of the Bankrupt Act.

The discharge of the principals^ was a bar to any j udgment against them, except for the purpose above indicated; and that is not the judgment which the sureties undertook to abide by and perform. In short, the bankruptcy of the principals made it impossible for the plaintiff to obtain judgment against them, within the meaning of the appeal bond; and the sureties have not been'fixed with a liability to see the judgment performed, because there is no judgment.

There is error.

Bek Curiam. Venire de novo.