3 Blackf. 92 | Ind. | 1832
A writ of scire facias was issued in favour of Richard Moody, executor, and Polly Moody, executrix, of the estate of John Moody, deceased, against Isaac JYaylor and William H. Moore. This writ states that, in 1822, John Moody, the plaintiffs’ testator, recovered a judgment against Moore, for. a certain sum of money, in the Clark Circuit Court; and that, in 1823, the judgment was replevied by Moore with JYaylor as his surety. It also states the subsequent death of John Moody, the judgment-creditor, and the appointment of the plaintiffs as his executors. The object of the scire facias, is to obtain an award
Naylor appeared to this scire facias, and pleaded three pleas in bar: — r-First, that the plaintiffs’ testator, in 1823, had taken out an execution of fieri facias against Moore and Naylor on the replevin-bond, and placed the same in the hands of the sheriff; that the testator afterwards, without Naylor's consent, directed the sheriff not to serve the execution, and it was accordingly returned not executed; that whilst the execution was in the sheriff’s hands, Moore had sufficient property out of which the money could have been made, and that he afterwards became and still continued to be insolvent. To this plea there was a general demurrer, and judgment for the plaintiffs, j The second plea is, — that the plaintiffs’ testator failed to take out execution, from the expiration of the time given by the replevin-bond until {he 4th of November, 1824; and that, during all that time, Moore had sufficient property out of which the money could have been made. There was also a demurrer to this plea, and judgment thereon for the plaintiffs. ' The third plea is, — that the plaintiffs are not executors. On this plea the plaintiffs joined issue. On the trial of the cause, the plaintiffs, to prove themselves executors, offered in evidence letters testamentary granted to them by a Court in Kentucky, together with an endorsement of a certificate by the clerk of the Circuit Court of Clark county, Indiana, that the letters had been recorded in the Probate Court of that county on the 9th of July, 1830. This evidence was objected to; but the objection was overruled, and the evidence admitted. The Circuit Court, to which the cause was submitted orchis evidence, awarded execution on the replevinbond, according to the prayer of the scire facias. From that judgment there is an appeal fo this Court.
The first question, presented by this case, is as to the validity of the first plea.
The foundation of the defence is, — that the withdrawal of the joint execution against Naylor and Moore was an injury to Naylor, of which he has a right to complain. The plea does not aver, that this joint execution was so framed or endorsed, as to require the sheriff, by virtue of the statute, to levy it first on the property of the principal debtor. It must be considered, therefore, as a common execution against two judgment-debtors,
In the case of Halford v. Byron, the principal assigned a judgment against a third person as a security for the debt. The creditor afterwards permitted the judgment-debtor to pay a part of the money to the original, judgment-creditor. The surety complained of this, and required to be exonerated to the amount of' that payment. The Chancellor, however, said, that the assignment was but of a judgment as a further security for the money due on the bond, and as the obligee had got it, so he might release or discharge it as he thought fit, and the surety is not hurt by it. But he said it would be otherwise, if the money had been once paid to. the obligee, and then lent again to the principal debtor. Prec. in Ch. 178.—2 Eq. Cas. Abr. 188. It is laid down in Pothier, that the pursuits of the creditor against the principal debtor do not liberate the surety, who remains always obliged until payment. Therefore, the creditor may abandon his pursuits against the principaimébtor, to sue the surety. But in general, he may oppose to him the exception of discussion. 1 Pothier, 232. The creditor, having commenced a suit against the principal debtor, may afterwards discontinue it, without affecting the sureties’ liabilty. Fulton v. Matthews et al., 15 Johns. R. 433. The payee of a promissory note made by a principal and surety, sued the principal on the note, and, under the statute of Massachusetts, attach^! sufficient property to satisfy the debt. The suit was afterwards discontinued, and the property attached given up, against the remonstrance of the surety. This proceeding was held to be no defence to the surety in a subsequent suit against him on the note: Bellows v. Lovell, 5 Pick. 307.
The holder of a promissory note recovered separate judgments against the maker and endorser of the note, and after-wards took out a fieri facias, by the. endorser’s request, on the judgment against the maker, who had sufficient property to pay the debt. This execution, after being placed in the hands of the marshal, was recalled, before a levy, by the holder of the
The doctrine both at common law and in chancery, in the, case of ordinary bonds for the payment of money, is, that where sureties join in a joint and several bond, they make themselves principal debtors to the obligee. The debt is presumed to be created upon the ci’edit given to the sureties, as well as upon that given to the principal debtor. ■ As between the obligors and obligee, all the obligors are principal debtors, though, as between each other, they may have the rights and remedies resulting from the relation of principal and surety. As long as the creditor does no act varying the terms of the original contract, he has the same claim upon the sureties that he has upon the principal, both at law and in equity, for the payment of the
The principal cases in which sureties have been relieved, are' where the creditor, by- giving further time to the principal for payment, has changed the original contract to the injury of the surety. The giving-of further time to the principal changes the contract of the surety to his injury in this way: — the surety has a right, as soon as the debt is due by the original agreement, to pay the debt and sue the principal for the amount, or to compel the creditor, by a bill in chancery or by a notice under the statute, to sue the principal. But if, by a valid contract, further time for payment be given, the surety’s hands are tied up. The principal is secure from arrest until the additional period for payment is expired; and, in the mean time, he may become insolvent. Courts of law therefore, following Courts of equity, have said — that the creditor by thus changing the original contract to the surety’s injury, and without his consent, discharges the surety altogether. Nisbet v. Smith, 2 Bro. Ch. Rep. 579.—Samuell v. Howarth, 3 Merivale, 272.
The case before us does not, certainly, come within this principle. Naylor's original situation.is not changed. He had the same right after the execution was countermanded that he previously had, to enable himself to take out an execution against Moore, or to compel Moody to do so. His hands were not tied up until a further time for payment had expired. As Moody was left entirely free to proceed against the principal or not, it would seem that he might sue out an execution on the bond or not, as he pleased, or that, after suing out an execution, he might withdraw it before it was executed, and take out another of the same or of a different sort, or none at all, at his discretion,, without affecting the surety’s liability. Naylor had bound himself in a replevin-bond, having the effect of a judgment, for the payment of a judgment previously recovered against Moore, and it was consequently the business of Naylor, and not that of Moody, to see that Moore paid the debt. Wright v. Simpson, 6 Ves. 734. If Naylor chose to be passive, and to neglect to have an execution levied on Moore's property until there was none to levy on, the fault is his own, and he must bear the loss.
It is contended that the fieri facias was a lien on Moore's goods,
The leading case, relative to the surety’s discharge by the creditor’s giving up the means in his hands of reimbursing himself, is that of Law v. The East India Company, 4 Ves. 824. In that case, the company, having money and effects of the principal debtor actually in their hands, more than sufficient to pay themselves, delivered the same over to his administrators; and the language of the Court is, that where the principal has left a sufficient fund in the hands of the obligee, and he thinks fit, instead of retaining it in his hands, to pay it back to the principal, the surety cannot be called upon. Mr. Fell, in his treatise on guarantees, after citing this case in 4 Ves., to show the general doctrine on the subject, says that, to effect the discharge, there must be a parting with something actually in the power and possession of the party, and not the consenting to waive the receipt of a payment or security, never in his actual possession; and, in support of this position, he cites the case of Halford v. Byrom, to which we have already referred.
In accordance with the principle in the case of Halford v.
The most of the observations we have thus far made, and of the authorities cited, relate to the case of a separate judgment and a separate execution against the principal debtor. That case is more favourable to the surety than the one before us. There were here no judgment and execution against the principal alone; but the bond having the effect of a judgment, and the execution, were against the principal and surety jointly. The surety’s defence is, that the failure to have the execution against himself and the principal executed, was an injury to the surety, and he is therefore discharged. This defence seems
MP Kenny’s executors having obtained a judgment and an award of execution, on three several forthcoming bonds; against Joseph Waller, the principal, and Curtis Waller the surety, therein bound, sued out thereupon three writs of fieri facias, dated in April, 1822, and returnable to the June term following. These executions were put into the hands of the sheriff. Joseph Waller the principal, had, at the time, personal property in his possession, amply sufficient to satisfy the whole debt; and the sheriff went to his house, three days before the return day, for the -purpose of levying the executions on his property then and there, with the avowed design to take it into his own keeping, when Joseph Waller prevailed on the creditors to give him a short indulgence, and they, at his instance, without the consent or knowledge of Curtis Waller, the surety, .gave written instructions to the sheriff not to levy the execution till they should see him. These were the terms of the instructions; the creditors not binding themselves to suspend proceedings for any time, but giving a mere indulgence to be determined at their own pleasure. In consequence of the instructions thus given him, the sheriff foreb.ore to levy the executions, and made return on them — “not executed by order of the plaintiffs.”. Very shortly afterwards, June 7,1822, M,Kenny,s executors sued out new writs of fieri facias; but, after these new executions were put into the sheriff’s hands, Joseph Waller removed the greater .part
Upon the authority of this case, and upon the others we have referred to, as well as upon the general principles which we conceive to prevail in regard to principal and surety, we have come to the opinion, that the plea of Kaylor in this case, which we have been considering, cannot be supported. *We think that the bare delivery to the sheriff by Moody, the creditor, of the fieri facias against Moore the principal, and Kaylor the surety, and Moody's countermanding the execution before a levy, are not of themselves a discharge to Kaylor the surety, though' Moore had sufficient property at the time to pay the debt, and afterwards became insolvent. The opinion of the Circuit Court, therefore, sustaining the demurrer to the first plea of Kaylor, is correct
With respect to the second plea, there can be no doubt. The mere delay of the creditor, in not proceeding at law against the principal debtor, is no defence to the surety. King v. Baldwin, 2 Johns. Ch. Rep. 554.—Eyre v. Everett, 2 Russ. 381. The demurrer to this plea was correctly sustained.
There is one error, however, in the proceedings of the Circuit Court. It is the improper admission in evidence of the letters testamentary of the plaintiffs below. They were granted in another state, and were of no authority here until recorded, agreeably to the provisions of the statute, in a Circuit Court of this state. Rev. Code, 1824, p. 324, 325. The law on the subject is otherwise now; and the foreign letters testamentary or of administration, need only be produced and filed with the clerk of the Court, in which the suit is to be maintained. Rev. Code, 1831, p. 170, 171. But the case before us is governed by the act of 1824; and as the letters testamentary, produced by the plaintiffs, had not been recorded in a Circuit Court
The judgment is reversed with costs. Cause remanded, &c.
“If the creditor parts with securities, or any fund, which 'he would be entitled to apply in discharge of his debt, the surety becomes exonerated, at least, to the extent of the value of such securities; because securities, which the creditor is entitled to apply in discharge of his debt, he is bound either so to apply, or to hold them as a trustee, ready to be applied, should the surety desire it.
Of .this principle the c,asc of Mayhew v. Crickett, 2 Swanst. 185, affords an exemplification. There a debt was secured by two promissory notes, each for half the amount, of two sureties, and also by a warrant of attorney of the principal debtor, upon which the creditor had entered up judgment, and taken the goods of the debtor in execution, but he afterwards withdrew the execution,
Per the Lord Chancellor, interloq. — ‘The second ground (in support of the bill by the sureties) was, that the defendants, by releasing the execution, had relinquished their remedy, at least pro tanto. I always understood, that if a creditor takes out execution against the principal debtor, and waives it, he discharges the surety, on an obvious principle, which prevails both in Courts of law and in Courts of equity. * * * * * The principle is, that he is a trustee of the execution for all parties interested.’ ” — Theob. on Prin. and Sur. 143.