St. Albans Bank v. Dillon

| Vt. | Jan 15, 1857

The opinion of the court was delivered by

Bennett, J.

We apprehend the defense set up to this note can not be sustained.

It is claimed that the note in question is void, it being taken, as it is said, upon a contract made in contravention of sound policy. Burr, the sheriff of the county, and jailer, took the note payable to himself or order, in discharge of the fine and costs for the nonpayment of which Mrs. Dillon had been committed to jail, and she was thereupon discharged from her confinement. Whenever she paid the fine and costs she was entitled to her liberty, and when the jailer took it upon himself to take the note, it was in effect so much money in his hands, and he at once became debtor for the fine and costs, as much so as if she had paid ^m the amount in cash. The note became his own. The sheriff v.'d not make use of legal process to oppress Mrs. Dillon, but what was done was matter of favor and indulgence towards her, and she should be the last to complain. The statute under which the penalty was incurred by Mrs. Dillon, provides that the court may take security for the payment of the fine and costs before he issues a warrant, and it would seem to be a great stretch of authority to hold that the taking of this note was against sound policy, if the sheriff of his own accord elected to treat it as so much cash in his hands. When a case arises in which legal process has been made use of for oppressive purposes, it will be time enough to decide what the effect should be upon a contract obtained by means thereof. In Leegars v. Brinkworth, 4 Camp. 45, a warrant had issued to collect a penalty which had been incurred for a breach of the excise laws. The officer took a note for the penalty, and it was held the security was valid. Though in that case it was a conceded point by the court, that if the officer had abused the process, he should not have been allowed to have enforced the note. This case is, we think, according to the whole current of authority. In the taking of this note no statute was violated. It was not taken to stifle any public prosecution, or in any way to compromise the ends of public justice, but rather in furtherance of the same and to carry into effect the sentence of the law. This was the manifest intention of the jailer, and the legitimate effect of his action, and we think, upon the facts in this case, the note must be held a valid security, even in the hands of the sheriff, and much more in the hands of a hona fide indorsee. See 11 East. 45; 4 B. & Adolp. 421; 24 Common Law 91.

The fact that Mrs. Dillon was a feme covert at the time this note was given can not have the effect to discharge McGowan as a several obligor. This may have been the very reason why security was required. See title, Feme Covert, sec. 4, Bingham on Inf. 470; 7 New Hampshire 360; 1 Parsons on Con. 494.

It is a general rule, that the extent of the liability of the principal measures and limits the liability of the guarantor ; but when the matter of defense in the hands of the principal is altogether of a personal character, as infancy or coverture, such matter can not avail as matter of defense for the surety. He in such a case stands in a certain sense as principal promissor. 1 Parsons on Contracts 494.

The statute of 1851 enabled the plaintiffs in this joint action, to take their judgment against McGowan. The fact that the defendant Dillon had judgment for her costs against the plaintiffs is nothing to the other defendant, who alone was liable upon the note. McGowan is the only excepting party, and the judgment of the county court against him is affirmed with costs.