17 Pa. Super. 520 | Pa. Super. Ct. | 1901
Opinion by
The obligation assumed by the surety upon an assignee’s bond is an agreement oh his part that the assignee will “ faithfully execute the trust confided to him.” This is unquestionably in the nature of a contract and is so regarded by the court below. Whether the promise to indemnify against contingent loss from the default of the assignee is original or collateral or whether the consideration moving the surety is between him
This being so, we are at a loss to understand why the surety in tMs case, who claimed the benefit of the Act of April 9, 1849, P. L. 533, exempting property to the value of |300 from levy and sale on execution, issued upon any judgment obtained upon contract, and distress for rent, should not be allowed to make good his claim. The court below properly distinguished between the assignee himself and his surety and said: “ The assignee could not have claimed the benefit of the exemp
Reduced to its last analysis, the use plaintiff brings his suit against the surety of the assignee for services rendered in the matter of the assigned estate, after the bond was given. Admit that the services were rendered upon the faith of the bond. If so, the contract was made when the services were rendered and this would be the legal presumption; but, even if there were no conscious acceptance of the appellant’s suretyship at that time, the contract surely became in every sense complete, when he attempted to enforce the provisions of the bond. We are, therefore, of opinion that the appellant was legally entitled to the benefit of the exemption law and the appraisement made by the sheriff, if in other respects regular and unexceptionable, should have been confirmed. The decree of the court below, setting aside the appraisement of personal property set apart for John Dorn, the appellant, is, therefore, reversed and a procedendo awarded.