72 Ala. 181 | Ala. | 1882
The appellee, Parker, executed his official bond as tax-collector of Clarke county, in September, 1874, conditioned for the faithful discharge of his duties in such capacity. This bond covered the entire duration of his official term, including the years 1874, ’75, ’76, and ’77. He also executed, in May, 1876, an additional bond, on requisition of the grand jury, in accordance with the provisions of the statute. This covered parts of the two years 1876 and 1877. There is one surety on the second bond, who was not an obligor on the first bond. Suits were instituted on each bond separately ; the assignments of breaches being identical in each suit, so far, at least, as the obligations of the two instruments were commensurate in point of time. Among other breaches averred, in the first action, was the failure of Parker to account for the taxes collected by him for the State during the years 1876 and 187T severally. The same breaches were averred in the action on.
A contract of suretyship is usually defined to be a contract whereby one person engages to be answerable for the debt, default, or miscarriage of another. — Brandt on Suretyship, § 1. In Evans v. Keeland, 7 Ala. 36, 56, it was said to be “an obligation accessorial to that of the principal debtor.” It was further observed: “ The debt is due from the principal, and the surety is merely a guarantor for its payment. A corollary from this definition is$ that it is of the essence of such a contract ¡that there be a valid obligation of the debtor.”—Ib., 7 Ala. 46.
The general rule, touching the question under consideration, is stated by Mr. Brandt to be, that “if the principal is discharged, because of matters inherent in the transaction, even after judgment against the surety, the latter will be exonerated thereby;” and he cites several adjudged cases in support of this view. By matters inherent in the transaction, we understand defenses that go to the whole consideration, assailing the original validity of the contract, or showing its subsequent discharge by performance, release, or otherwise. — Wells’ Pes Adjudicata, p. 83, § 88; p. 90, § 105. There are certain well-established exceptions to this rule. Among these are cases where the principal is discharged by operation of law; as in case of bankruptcy, insolvency, the statute of noovclaim, and the like.—Garnett v. Roper, 10 Ala. 842; McBroom v. Governor, 6 Port. 32; Brandt on Sur. § 126. This exception is based upon the reason, that the discharge, being by operation of law, is without the consent or procurement of the creditor, and, therefore, the surety ought not to be discharged.—Phillips v. Wade, 66 Ala. 53; Philips v. Solomon, 42 Ga. 192. Another exception is, where the invalidity of the contract rests on some ground personal to the principal; as coverture, infancy, or other like disability.—Bean v. Chapman, 62 Ala. 58; Brandt on Sur. § 128; St. Alban’s Bank v. Dillon, 30 Vt. 122; Gale v. Wheelock, 109 Mass. 502.
There are many reported cases illustrative of the principle under discussion. In Gill v. Morris, 11 Heisk. 614 (21 Amer. Rep. 744), a suit was instituted against a surety, for a sum of money loaned to his principal by the plaintiff, in Confederate money, or treasury-notes of the late government of the Confederate States. The surety was allowed to plead successfully, in bar of the action, a judgment discharging .the principal on account of the adjudged illegality of the contract. True, the
In Ames v. Maclay (14 Iowa, 281), an action was brought against a sheriff and the sureties on his official bond. The sureties pleaded severally, and judgments were recovered against them alone. Afterwards, there was a trial of the cause against the principal in the bond, and a judgment was rendered in favor of the principal. It was held, that equity would perpetually enjoin the enforcement of the judgments against the sureties; which was, perhaps, carrying the rule too far, in view of the laches of the sureties in failing to make their defense in due time at law. The decision was based on the ground, that the judgment in favor of the principal extinguished the debt, and “the principal thing being thus destroyed, the incident (the obligation of the surety) is destroyed with it.” A similar ruling was made in Beall v. Cochran, 18 Ga. 38, and in King v. Baldwin, 2 John. Ch. 557.
In Brown v. Bradford, 30 Ga. 928, the sureties of a sheriff were allowed to avail themselves of a judgment previously rendered in favor of their principal, in another suit, to which they were not parties. The action was for the alleged default of the sheriff; and the court say, that “ he [the sheriff] was not in ■default in refusing to account for this money, after there was ■a judgment of the proper court that he had already accounted for it once, and was not bound to account for it any more.”
In Dickson v. Bell, 13 La. An. 249, a like ruling was made, in favor of the sureties of an administrator, holding that they would be protected by a judgment rendered in a different action, in favor of their principal. See, also, Jackson v Griswold, 4 Hill, 522; Miller v. Gaskins, 1 Sm. & Mar. (Ch.) 524; Res Adjudicata (Wells’), p. 83, § 88; p. 90, § 105; Couch v. Waring, 9 Conn. 261; Baker v. Kennett, 54 Mo. 82; Patterson v. Cave, 61 Mo. 439; Kane v. Young, 34 Pa. St. 60.
We are of opinion, that the judgment discharging the appellant, Parker, in the first action, operated to discharge, not only himself, but also his sureties in the action on the second, or additional bond. The liability of the principal being adjudged not to exist, the liability of the sureties falls with its extin-guishment.
The proper application of these principles compels an affirm-
Affirmed.