14 N.H. 496 | Superior Court of New Hampshire | 1843
The covenants by the defendants in the indemnifying bond are very general, and embrace all losses which the plaintiffs could sustain by reason of their having become sureties in the bond to the judge of probate. Oases similar in principle to the present have often arisen, and the decisions are so numerous and comprehensive, that the questions before us can be determined without difficulty.
It is necessary to examine the authorities at some length, in order to ascertain what sum the plaintiffs are entitled to recover. In the case of Duffield vs. Scott, 3 T. R. 374, the action was debt on a bond, conditioned in the most general terms to indemnify the plaintiff against his wife’s debts, and against all demands by reason of any cause, matter, or thing whatsoever, concerning her. The defendant pleaded a general performance; to which the plaintiff replied, that one Cuthberl sued him on account of certain goods sold and delivered to the plaintiffs wife, and recovered judgment for the debt and costs, which he was obliged to pay. He also averred, that in the defence of that suit he necessarily laid out the sum of £40, of all which the defendant had notice. Shepherd, for the defendant, contended that in order to entitle himself to recover the costs and expenses attending the recovery of Culhbert’s demand, the plaintiff should have shown that he had given notice to the defendant of that demand, by neglecting to do which, those costs and expenses were incurred. But it was held that the plaintiff was entitled to recover. Lord Kenyon said, that if it had been intended by the parties that the obligor should have notice of each demand, that should have been inserted as a condition in the articles of separation between the plaintiff and his wife. An action was commenced by Cuthbert, which, for anything that appeared to the contrary, was the the first notice the plaintiff had of that demand, nor did it appear on the record but that these costs were incurred in the first stage of the proceeding, in which case no neglect was imputable to the plaintiff. His Lordship concluded by saying that the plaintiff was entitled to the costs and expenses attending Cuthbert's action, as well as the debt itself. Butter, J. said,
The above authorities show that a notice in a case like the present, is not a prerequisite to the maintenance of the suit. If the defendant be not notified, he may show that the plaintiff ought not to recover the amount he has paid. But if he be notified, and refuse to defend the action, he will be es-topped from showing that the plaintiff was not bound to pay the money, and ought not to recover it. It does not appear here at what stage of the proceedings on the probate bond the plaintiff incurred expenses in defending against it. It may have been after the conversation between Mr. Eastman and the defendant, nor does it appear that the defence by the plaintiff to that suit was improvidently made. Now this conversation was in substance a request to the defendant to take upon himself the defence of that suit. This he did pot do, and an objection to paying the expenses which the plaintiff incurred, comes with an ill grace from the defendant, when he had the opportunity of managing the defence himself, and of defeating the suit, if that were practicable. We think, therefore, that the plaintiffs are entitled to recover the amount they have been obliged to pay, with interest thereon according to the commissioner’s report, and the expenses they have incurred concerning the suit on the probate bond, and for this sum there must be
Judgment for the plaintiffs.