*1 ALBANY, DECEMBER, 1850.
Bangs to this and there is fide bona Flagler subject equity; pur- chaser the case.
I am the decree of the court opinion supreme right, affirmed. and should
Decree Bangs Strong et al. vs. et al. order of the court of affirmed in the court of An allow- chancery, errors, interlocutory overruling ground ordering ing it on a technical a it to stand for an an- plea, good that the matter of the is a adjudication is an defence to the plea, true, swer, to such order are bound and the determination in conclusively bill, parties proceedings in the cause. all the future alledging bill judgment to a creditor’s one of the debtors in a where put
Thus, plea discharged and that he was from the debt reason of an surety merely, extending agreement judgment made between the creditor and the principal, after argument and on the court of overruled the time plea payment; chancery ground, gоod on a technical but held matter of the and allow- plea defence, for an and the order afterwards affirmed ed it to stand court answer; hearing pleadings that on the final cause after held, proofs errors; agreement had been the effect of the the truth established, was not an but had determined in open question, conclusively his favor order. previous extending agreement valid the time to the A payment principal debtоr, seems, discharges although judgment against such is made after surety, the contract. both upon extinguish judgment it seems does not the relation of be- subrogation. nor tween the the sureties’ debtors, destroy filed Alcott obtain satisfaction of a by Bangs Bill in the court their favor supreme rendered Oct. M. Haltby 30,1838. Strong Strong, Strong bill, in a an to all the relief supported by answer, put and a discovery for, prayed setting up made on 12th of J. other August, which time judgment debtor, plaintiffs, by given tо the former became plaintiffs CASES IN THE COURT OF APPEALS. Strong.. bound to receive payment land instead of money, that J. was the debtor and alledging M. Strong *2 the and that such M. in surety, was by agreement Strong from all on the The discharged liability cause judgment. was heard before the vice chancellor the eighth circuit, the bill and of M. and he decided plea the on Strong, plea, the that the set ground gave time to agreement up the debtor. on The to chancellor, aрpeal him, held that the M. the operated discharge Strong from the that it unless should was appear procured the by fraudulent J. or had representations sanctioned M. held also, he by the answer the covered same accompanying ground plea. For that and reason he overruled the directed it to stand for an answer. 10 On Paige, to the late (See appeal 16.) for .court the correction the decree of errors, the chancellor 7 unanimously (See Mill, The 250.) plaintiffs afterwards and the cause replied came to a plea, again on and before the vice hearing chancellor of pleadings proofs, who dismissed the as to eighth circuit, bill M. Strong Everard defendants to Peck, one whom M. had Strong made an on real estate the 27th of assignment October, 1838, in trust to which creditors, assignment alledged in the bill to be fraudulent. This decision on the proceedеd ground set which had by up plea, been established M. by proofs, Strong discharged all The liability plaintiffs judgment question. appeal- ed to the who affirmed the then chancellor, decree, they to this court. appealed Mill,
M. Jr. for I. The appellants. assignment by Maltby to Everard made to hinder, Peck was defraud Strong delayed It void. for was therefore creditors, provides giving prefer not sell to lease ences, only, empowers assignee thе creditors to thus mortgage; have away taking without Barb. (3 converted into Ch. money delay. property Pep. 644, 646; 2 Comst. 365, 371; 11 Wend. 189; Paige, ALBANY, DECEMBER, such for also assignee compensa paying provides
229.) who are determined three named; tion as shall be persons, to award the those assignee any portion thus enabling persons If fund think Comst. either (2 proper. 372.) to are whole adverted illegal, assignment provisions 20 id. 14 John. Wend. 465; 449; Cowen,580; is'void. (5 moreover is shown be fraudulеnt The assignment 189.) aliunde. evidence
II. The J. 12,1839, agreement August signed by into been entered after Alcott, and Wm. W. having did not and Maltby Strong, Maltby. against Joseph is time discharged giving principle it altersthe is, contract not that this alteration to his to become liable, agreed it be the result him, will be prejudice; though beneficial Meriv. 8 Dowl. &. same. Where Ry. (2 *3 is or and another contract substituted, up merged, original given or of the the consent default the no principle longer And after the the has creditor to hence, the surety put applies. the on con suing obtaining necessity judgment original time to the is no John. the act debtor defence. tract, giving (5 3 2 2 520, 525, 6; McLean, 44; Wheat. Chit. Ch. 305; Rep. Denio, 3 2 Barb. Howard, 192, 205; 157; 5 S. C. 125; Rep. that cases the the upon These 484.) proceed ground judgment and substitutes a new the contract, obligation extinguishes original the creditor nor debt; or neither securityfor to that contract to ascertain can resort enforce their is familiar extensive in its The doctrine applica rights. McLean, John. 9 & 18 Ser. 168; 459, 483; Rawle, 142, tion. (2 1 148 11 & John. 1 ; 11; 13 Mass. Gill. Ham. 145,146 ; 157; & 6 Whart. Serg. 334; 264.) Watts has no to ask that the court shall be-
Maltby go out an of a contract arising hind protect equity has he has he refused perform, compelled for a new and different creditors relinquish obligation. if than had volun- are he say least, His rights greater, a second himself as security binding given principal. tarily THE OF CASES IN COURT APPEALS. (14 Peters, 201; 10 id. 257.) Besides, this case is consists of a manifest mere technicali- pretended equity has clear that not been ty ; Maltby Strong prejudiced being of the 12th of slightest degree by arrangement August, rather. The defence is unconscientious, benefited should unless the court ex are overruled, rigore compelled allow it. Under such follows juris circumstances, equity law. 12th of
III. But the 1839, entered agreement August, was not into without authority Maltby Strong, binding and therefore did not on the appellants, discharge Maltby. is the facts to the execution clear from proved relating induced Alcott to believe that Joseph Strong it. had assented to authorized The agreement Maltby having a fraud obtained practised appellants, Maltby himself of it. For he must not avail show can as between well appellants binding 1 Comst. can the at Whart. Nor (3 law. for the same if the creditor acted it, himself reason, avail if the mistake was occasioned mistake; under a especially the conduct (1 Story’sEq. 134, 140, principal. ; §§ 2 Cowen,129.) for I. The decree of the court
O. Hastings, respondents. of errors was a final and is correction conclu adjudication, on A decree, sentence sive appellants appeal. conclusive directly always point, the same (Gardner Buckbee, Cowen,120, parties.' there cases So an decree died) interlocutory establishing can not be reviewed the final partiеs, hearing. *4 v. v. 5 296 Bank Co. Orange Fink, Coffin, Paige, ; (Mapes 8 v. J. Wend. Sutherland, 234, Kane 87; Whitbeck, id. per 7 allow After a has been Maynard, senator, and 246.) per on the truth thereof remains issue ed argument, nothing Pl. the Pl. lube’s parties. (Story's 697; Eq. Eq. § ch. ch. 1 see Starr v. Child, and also 1, 4, 3, 2, 4; part § in cowl appeals, December, 1849.) The replication 319 ALBANY, DECEMBER, v. admits that is a bar. true, the The bill admits plea, virtually the and it too late for the is now take same, new appellants ground.
II. If the should still be deemed open, question respon M. that the relation of dent, insists Strong, surety with all its continued incidents, between him and J. after the August from all him 1839, 12, liability appellants. discharged at law A determines between the defendants. nothing judgment It does not alter their relation each other. A defendant who surety obligation upon judgment before, after the as well as rendered, may, prove in a court of of his law, fact avail himself suretiship of any of action or out defence, of that relation. growing right (Car v. Metc. Commonwealth 9 v. King, 411; Miller, 8 & penter Serg. Bank v. 452 Commercial WesternReserve ; Rawle, Bank, Ohio Mauri v. R. John. 58 Hunt v. Heffernan, ; Amidon, But whatever be the rule at it is Hill, may well 345.) law, set that in tled between the any creditor equity, arrangement which interferes with the debtor, debt, demand the creditor immediate of all his cession remedies will principal, if such was made without arrangement consent. 250, and authoritiestherecited Strong, 7 Hill, (Bangs byrespon cоunsel; dents' 3 Barb. S. C. Thorne, Rep. Storms 814, cases Jur. The cited; 325, there Story's Eg. 833.) agreement of §§ within the on 1849, clearly rule 12th, August courts to be decree Hill, of equity discharged. (7 invalidate fails to JH. proof does agreement. fraud of J. not establish the assent or alledged M. sanction respondent, J. When the
Hurlbut, defendant, Maltby of the 12th of Strong, setting up August, the relief was first bill, bar before sought brought both in chancellor, objected against plaintiffs, to form and but was relied substance; dе- respect *5 OF APPEALS. COURT IN THE CASES Bangs [320] fendant as containing matter which went to his complete it was the the bill which object from the judgment discussed the in his merits chancellor, opinion, enforce. The if it was to the conclusion that, true, and came the plea, from the judgment. was discharged Maltby Strong some an answer was covering plea accompanied which former, operated relief and embraced by discovery and it was therefore ordered to stand overrule it; technically On for with plaintiffs except. ap- answer, liberty to the court the correc- from this order by plaintiffs peal that the matter of the tion of contended errors, plea they again to. have And this been appears did not constitute a defence. It was, in that court. deter- however, made only question of the so that the were parties mined obligations in set affected and up materially changed the rela- the defendant Maltby Strong, standing plea, tion was hence that discharged, defence. a substantial The the matter of the was order plea therefore Paige, the chancellor was (See 11; 7 Hill, 250.) determination this was a conclusive
In my judgment The argument. main merits present question presented involved in these decisions. If it were necessarily plea it would have of defence had not matter abso stated good for an answer. and not ordеred to stand This overruled, lutely delivered what order of itself support implied, opinions a substantial answer it that the contained maintained, defect The deprived, to the relief bill. sought character. a technical a was efficacy plea, purely of it the manner while was only matter approved, it to stand with effect of condemned; by ordering and conclusively passed its merits were as directly answer, an. allowed as Wheth as if it hаd been court, plea. upon the answer accompanied it, connection with er, taken determined have been full and could- sufficient, only arises here. We of that sort But no must, question exception. which was af that the order chancellor, hold therefore, ALBANY, DECEMBER,
firmed appeal, was a conclusive determination be- tween these the matter of parties, plea, true, defence. Ch. Pl. 302, Orms, Orcuttv. (Mitf. good 3 Paige, *6 Pr. 459 Barb. Ch. ; set forth in the the agreement so being proved, suit,
far as the is unless is plea extends, barred, there in something the other relied on the learned counsel grounds by for the appel- which must held to the lants, of qualify the operation agree- it of We effect. find ment, deprive in legal might enough to warrant evidence us in that the was made holding with the of it knowledge approbation Maltby Strong, were not for the of denials this very fact explicit contained in and answer. are verified These the oath of the de- and are to the fendant, and at responsive bill,, the utmost can not be considered as contradicted more than the testimony one of witness. The defendant’s statement must therefore be taken as the truth case.
I find evidence of any representation Jo- that had authorized or consented seph Strong Maltby The witness,' Abner making agreement. Pratt, was in- on this but he did not feel assured that terrogated pоint, any such was He stated, made. representation that however, was his at the time of the that understanding agreement, Joseph into it in behalf of himself and Strong entering Maltby he Whether derived this from the impression fitness from in the recital or from thing, agreement, Joseph as he to consult out, his Strong’s supposed, going brother, witness did not nor is it state, material; very for, unless Joseph or some one who was instrumental in Strong, procuring in out some manner, and so as to gаve agreement;, induce Allcott that believe consented to Maltby it, Strong mere impres- sions of witness, as stated can him, have no influence in the determination He question. states no fact from court can that infer Joseph made the Strong repre- sentation referred to.
It however, that the urged, its face affords evidence of such that representation, by reciting was made
Yol. IV. IN OF CASES THE COURT APPEALS. “ in behalf respective parties i. e. plaintiff the dеfendants these Maltby Joseph Strong. Taking
words do not im- as the of Joseph fairly language act than that he assumed to benefit him- more port self it in doubt whether he acted Strong, leaving Maltby or not. As to silent. is authority express writing That thus assumed to act without he have All- might misleading his cott the consent authority respect Maltby Strong, from the circumstances the case. obvious Allcott knew was the who in con- debtor, ought his his science to judgment. duty satisfy In for its so he was doing payment. discharging arrange his own and also obligation, relieving proper was thus a sense be- of debt. He acting burthen If had desired the half of that Allcott consent express surety. it is that he reasonable latter, suppose authority it, would have made a employed point language *7 would have in the course their negotiation, by parties not does from had done so. shown that he appear witness who could not present, The only еvidence. was made the subject; verbal state that any representation held im- of the recital cannot be fairly and as language as with the himself acting Strong represented that Joseph port of his brother, consent objection agree- or authority false such a representation, ment, assumption based sustained. be cannot it was fraud, of all competent
In the absence of the and discharge for the to agree payment Strong and I per- or consent of Maltby Strong; the authority without the agreement should prevent in the case which ceive nothing full effect. taking question the chancellor should the decree am of the I opinion be concurred.
All the judges of the the effect as J. The question Pratt, liability Maltby J. plaintiff Strong between 1850. ALBANY, DECEMBER, the chancellor in this adjudicated case, by [323]. the court for correction of Paige, (10 errors, 16,) made Hill, was then Although question upon any- distinction relation supposed effect, upon liability aof anof surety, to extend the time- of payment before or after in this case judgment, yet precise question the courts in that passed and the necessarily upon by case; is therefore res as question between the this- adjudícala parties suit. ifBut may considered the deci- open question, sion was clearly of a right. recovery against does not or surety his as such, character merge destroy to; relation which he sustains to his Its effect is principal. only the form of the as him and between the debtor. change security the contract between the and the creditor Merging can not debtor affect the relation between the surety princi- This relation is not created pal surety. the- necessarily contract to which the creditor ais be created party, may without even Ms Joint debtors an inde- knowledge. mаy, by themselves, their pendent arrangement change relations to each other as create relation such, to each other without e the knowledge principal. So as he is he would long ignorant not be affected change but as soon as it; he receives notice relation, the are the as same, him, would have been if the relation had been created con- original tract.
That the character such, not mergеd destroyed by is evident him, recovery judgment against from the numerous cases where both courts law admit dehors the record establish character of testimony *8 If he should courts of law surety. would- judgment, sustain the action of to recover back the assumpsit money his or from his contribution Moembarrass- principal, co-surety. ment would felt in be evidence to establish the admitting parol of So if has in his col- the creditor suretiship. possession fact latеral to securities debtor, belonging principal surety,, on a court of for an paying judgment, may apply equity
-324 CASES IN THE COURT OF APPEALS. v. assignment to him of those sureties. Has- it ever been
doubted that in such is admissible to es parol cases, testimony, tablish the relation of ? This of sub principal right surety. is one of the clearest and most well established princi rogation “ of It has been said that is scarcely ples equity jurisdiction. too this substitution (Hodgson possible place right high “ it does not rеst & Shaw, Myl. Keene, ;) foundations of contract, but the broader and upon deeper upon Aiken Matthews, natural moral justice obligation.” does not rest con If the Comst. subrogation upon right 600.) that the of a can not affect tract, is clear recovery this right. sacred, so so rest high subrogation right and moral obli of natural sacred principles justice upon
ing ain allowed, that the creditor would be is it possible gation, im this with with to interfere destroy right court equity, it had not it where That for the enforcing purpose punity? the relation of would a court of recognize been impaired, but would refuse after even judgment, surety the credi against when complaint relation recognize will trace the If the court ? tor that he had impaired right for the ena relation, purpose notwithstanding his his action money paid to sustain against the surety bling or for subro his co-surety, for contribution against principal, its should pоwers the creditor, paralyzed why gation connected a case so intimately case, in this especially solitary that no an I insist satisfactory ? with subrogation right has where the distinction case has any swer been given, insisted counsel argument The plaintiff’s recognized. was based upon change discharge time when the payment without consent—that contract between the- into entered other extended, stipulation any debtor, conditions changing creditor veni in non fcederá, had. a say contract, position. (Burge authorities support several he cited 9 Wheat. R. 28; C. C. 4 Wash. 214 to Suretiship, .surety where the are cases there- Doubtless *9 ALBANY, DECEMBER,
Bangs well be this might his put upon ground, generally liability is discharged upon entirely different principles. It [325] more a contract as to a than it does as changes to joint it is clear that an debtor; extension of the yet time pay ment to one debtor without of his the сonsent joint co-debtor, would not the latter. The true which discharge ground upon of the is liability that his discharged, rights against his are or at least principal impaired affected. was this upon that Chief ground Justice Bronson his placed when' discharge this case was before the court correction errors. He said there interfered with his right subrogation; “ of the debt he was upon payment entitled to be substituted in the creditor’s as to all securities and plаce means enforcing which payment to such appertained creditor.” In this case, previous arrangement the plain- tiffs and J. had the Maltby to pay up and to be substituted place plaintiffs all the means of payment enforcing against debtor. principal his condition was arrangement materially changed. he would not Upon payment have found only himself as to delayed but the enforcing payment time, debtor had the in land. His right by arrangement his were thus without against materially changed therefore will not consent. court stop into the inquire which he have extent but will may sustained, hold injury him from his In the entirely discharged liability. language will hold such civilians, they between the agreements cred- itor and debtor conclusive evidence an intention to vacate the debt surety. Juris. (Story's Eq. 325, 833.) courts of will
Whether "law follow the rule same as courts of it is not All the remedies to equity, necessary which inquire. sureties arе now either their entitled, cred principals, itor in courts of or co-sureties, whenever originated equity, courts law have taken the same cognizance matter, they extended their to matters over have jurisdiction simply courts of had I see already undoubted' jurisdiction. .no CASES IN THE COURT OF APPEALS.
reason courts of within why law, principles have long acted, would not hold an kind defence is now action, the judgment especially, *10 well settled of the same character would arrangement the same before precisely principles it can not not, but whether would or affect judgment; a court whei the whole doctrine rela e question equity, tion The of sureties privileges originated. judg ment of the court should affirmed. supreme (Samuel 3 Meriv. Jur. Hawarth, 637; C. C. Cooper Spiner, Eq. all the cases App. collected.)
Decree Montgomery County Mutual Insurance vs. Babcock
Company. against generally loss and in clause building was A insured fire, separate lightning. be liable for firе The build- the insurers would declared that policy ignition or lightning, but no combus- ing was struck prostrated destroyed, for the loss. w'ere not liable tion insurers took place. Held, meaning of the against in the fire, ordinary popular The insurance, seems, light- against not mechanical effects of ignition burning, and e. actual i. term, lightning to determine whether it was held ning fire, unnecessary therefore, ; considered. scientifically Insurance Mutual County Montgomery sued Babcoсk on a .fire and declared court, policy, in the supreme Company in- the defendants 1844, whereby the 21st September, dated of the plaintiff, and out-buildings houses two dwelling sured date of the from the policy. five fire for years loss by there- forming the policy annexed The conditions “ will be words : The company in these a clause of, contained not loss for any damage by lightning, ly liable jure &c. invasion, insurrection, riot,” of any means fire happening al- forth the policy, proceeded after setting The declaration,