Monson v. Lawrence

| Conn. | Oct 15, 1858

Ellsworth, J.

The principal ground upon which this petition is brought, if not the only one, is the bond executed on the 7th day of July, 1851. But this is a mere bond of indemnity. It gives no cause of action until the petitioner is damnified, by being obliged to pay some indorsement which he has made for the Union Woolen Company or some of their paper which he has underwritten. This event has not yet happened ; no payment has been made, and no damage has been suffered by the petitioner; and hence there is no breach of the bond or cause of action upon if. And if indeed there was, it is not readily to be perceived why a court of equity is resorted to, when a court of law furnishes an adequate remedy by suit on the bond. The state of the account, so far as that is important, can as well be shown in the latter court as in the former. But as it is found and agreed that the petitioner has not paid any thing at all for the company, the state of the account is not now important. There is not, as we conceive, the semblance of a claim on the bond, in any court, either of law or equity.

Then, laying the bond out of the case, is there any thing else in the finding which will sustain the bill? We think there' is not; and we are much inclined to believe that the professional gentleman who drew the bill had substantially the same view, for the bill as drawn seems to present that simple aspect.

But if we are in error in this conclusion, and must go farther in our inquiry let us see what are the facts which are found by the court. It seems that there are two notes of hand outstanding, and one draft upon which the petitioner with others is liable, on which he has been sued, and certain property of his been attached. He asks that the court will enjoin against these suits. One of the notes is for $3,000, given to Timothy Chittenden, signed by the company as the principal, and by Lawrence, Bissell, Ferris and the petitioner as sureties. The other parties respondents are, aside from the aforesaid bond, in no way responsible for this note, and, so far as this note is the matter in controversy, should not have been made respondents in the suit. Now, as to the note, it is paid and extinguished, or it is not. If it is paid, the respondent has a good defense in the action at law. If it is not, it is the property of John H. Russell and Frederick Watson, who, having attached property to secure the debt, are proceeding to obtain judgment; and we know not why their efforts should be arrested. The same is true of the note of $1,000 due to Mr. Church. Lawrence and the petitioner are alone sureties here. This note is avowedly unpaid and may therefore well be sued. So as to the draft of $1,000; the petitioner is the accepter, and Lawrence and Russell the indorsers, and apparently, (the bond aside,) the latter are liable only after the petitioner. We do not then see any thing in the notes and drafts themselves, or in the matter with which they are connected, that raises an equity in favor of the petitioner against the owners of the notes or draft, or against the respondents as obligors in the bond, or as stockholders in the Union Woolen Company, when, under the charter, there is no personal or individual liability.

Besides, from other facts in the finding, it is apparent that the respondents are largely in advance of the petitioner for moneys paid out on the indorsements of the company’s paper; indeed, the petitioner has not paid any thing at all, while most of the others have paid large sums, but on the contrary has left the state without making provision for the payment of any portion of the company’s debts, or arranging with his fellow indorsers or sureties for the sums which have been paid by the respondents as indorsers or sureties.

We advise therefore that the bill be dismissed.

in this opinion the other judges concurred; except Seymour, J., who, having formerly been of counsel in the case, did not sit.

Bill to be dismissed.