Monell v. Smith

5 Cow. 441 | N.Y. Sup. Ct. | 1826

Curia.

Where one becomes surety for another, for a certain sum or sums of money; and takes a bond and warrant from his principal in the usual form for a sum or sums corresponding in amount; or a bond and warrant conditioned to pay the specific sum or sums to the creditor; and there is a partial or total default of payment by his principa¡_ eYen though the whole money be not due, he may issue execution for the whole ; and this, whether he has made payment or not. This position is warranted by the cases which are cited and considered by the late chancellor, in Roosevelt v. Mark, (6 John. Ch. Rep. 266, 279 to 285.) The decision of that cause follows the cases cited ; and we think with good reason. The only question is, whether the same course may be pursued where the bond relates in general terms to liabilities as surety or endorser, past and prospective, without mentioning a sum certain; and we think it may. It is true, the sum does not appear on the face of the bond ; and there is no doubt that in an action on such a bond, breaches must be assigned. It would be the same however, we think, as to a bond conditioned to pay specified sums to third persons. The certainty is the same in both cases. In both, we may be obliged to look beyond the face of the bond, to see what is due. In a technical sense, that is certain, which may be made certain. We all know the objects of the parties to these instruments. It is to afford the most prompt indemnity. This, many times, cannot be done, where the surety is first obliged to pay; and then resort to his execution. Such a course might ruin him. And even then, there might be a dispute as to the propriety of his actual payments ; as whether the principal may not have paid them - before. Great caution is used in these 'cases to make the security perfectly adequate. The warrant of attorney, generally, contains a power to release all errors and irregularities : and if there be any abuse, it is perfectly competent for this court to afford equitable redress. If the amount due be doubtful, the defendant may have an issue. If the plaintiff is plainly seeking to levy more than is due, he may be restrained on motion. If there be danger of misapplication, this may be provided against by security or otherwise. (Bank of Auburn v. Throop, 18 John. 505.) In the present case, the only doubt with us was, whether, as the plaintiff is alleged to be insolvent, we ought not to direct the money which shall be levied to be brought into court, or otherwise secured to the creditors of Smith and Jenkins. But it appears that the plaintiff has in fact extinguished a debt which he incurred as endorser to the bank of Columbia, which more than covers the amount that he has levied upon ; and there is nothing at present which induces us to believe that should he succeed in levying more, there will be any want of good faith in its application. Under these circumstances, we deny the motion.

Motion denied.