Appeal, No. 95 | Pa. | Apr 23, 1900
The only question raised on this .record is the refusal of the court below to take off the compulsory nonsuit entered as to the defendants Crossen and Carr. As to them it appeared by the plaintiff’s testimony that at the time they became sureties on Riley’s bond to the plaintiff, Riley, the principal in the bond, was a defaulter, and a debtor as such to the plaintiff and that this fact was withheld from the sureties. That this was a good defense against the bond on the part of the sureties was ruled by this court in the case of Wayne v. Commercial National Bank, 52 Pa. 343" date_filed="1866-10-17" court="Pa." case_name="Wayne v. Commercial National Bank">52 Pa. 343. Such a concealment of such a fact known to the obligee at the time of taking the bond, as was the fact in this case, is a fraud upon the sureties and avoids it as to them. The rulings in Portner v. Kirschner, 169 Pa. 472" date_filed="1895-07-18" court="Pa." case_name="Portner v. Kirschner">169 Pa. 472, and Farmers, etc., Nat. Bank v. Braden, 145 Pa. 473" date_filed="1891-11-09" court="None" case_name="Farmers' etc. N. Bank v. Braden">145 Pa. 473, are not upon this point and they are, therefore, not applicable.
Judgment affirmed.