4 Watts 95 | Pa. | 1835
The opinion of the Court was delivered by
—The error below was in treating the bank as if it stood by the assignment of the. judgment confessed by Douglass to Parson, as a surety indemnified against its own debt, and not entitled to proceed on the security till the surety were damnified by being compelled to pay. If such were the law, the surety could not, with any effect, assign such a judgment to the creditor as a collateral security; for the debt would be extinguished by the only act which could give the judgment vitality. Even were payment necessary to impart such vitality, still the bank, being the hand to receive, and standing in the place of the hand to pay, might, perhaps, elect to consider the original debt as paid in contemplation of law, and proceed on the judgment as an independent security. But neither the bank nor the surety was bound to wait till the surety was actually prejudiced by the default of the principal. The principal was bound to keep the surety not only indemnified, but unmolested; and to this end the judgment given the latter was put into his hands, as an instrument to extract payment from the funds of the principal debtor, and thus to compel him to do what he ought to do. Such is the principle of Miller v. Howry, 3 Penns. Rep. 374; and such, too, is the
Decree, that the money in court be paid in satisfaction of the judgment of the bank as assignee of Parson.