8 Wend. 194 | Court for the Trial of Impeachments and Correction of Errors | 1831
In Pain v. Packard, 13 Johns. R. 174, the supreme court decided that the surety was. discharged where the principal debtor was perfectly responsible at the time the debt became due, and the creditor, although requested by the surety, refused to proceed and collect his debt until the principal became insolvent. This decision was made without argument, and two, at least,-of the judges who concurred therein, afterwards expressly dissented from it, and declared themselves satisfied it was wrong. It was also overruled by Chancellor Kent, in King v. Baldwin, & Fowler, 2 Johns. Ch. R. 554, and although Chief Justice Spencer, afterwards succeeded in this court, 17 Johns. R. 386, in reversing the decree of the chancellor, it was in opposition to the votes of all the other justices of the supreme court who » took part in the decision. The decision was made by the casting vote of the president against the opinions of some of the most distinguished lawyers in the state, who were then members of this court as senators. It also stands in opposition to the decisions of most, if not of all of the states in the union, where the question has arisen. Davis v. Huggins, 3 New-Hamp. R. 231. Frye v. Barker, 4 Pick. R. 382. Buchannan v. Bordley, 4 Har. & McHen. R. 41. Croughton v. Duval, 3 Call’s R. 69. Moore v. Broussard, 20 Martyn’s R. 277. Lenox v. Prior, 3 Wheat. R. 524. In Pennsylvania, where they have no court of chancery to enable the surety to proceed in his own name to compel payment by the creditor, it has, after much hesitation, been decided, that where the
The plaintiff in error entirely misapprehends the grounds upon which even a court of equity proceeds to compel the creditor to collect his debt of the principal. Under our law» unless the contract is special that the surety shall only be liable after it is ascertained by due course of law that the debt cannot be collected against the principal, the creditor has a right to demand his money immediately from the surety, as well as from the principal debtor; and a court of equity will not interfere to deprive him of his legal rights, unless such proceeding would be unconscientious, and would deprive the surety of some equitable benefit to which he is entitled. If the time of payment is past, and the creditor neglects to proceed, the surety himself may institute a suit in equity against the principal debtor and the creditor ; but such suit is not for the purpose of delaying the latter: it is to compel the former to pay the debt, and thus to relieve the surety from his responsibility. So, if the creditor holds any additional or collateral security against the property of the principal debtor, or otherwise for the payment of the debt, the surety who pays is en
I have looked into the principles of the civil law, referred to by the plaintiff on the argument, and I find if those principles are applied to this case, they will not place him in a bet- ' ter situation. In cases where, by the civil law, the creditor could be compelled in the first instance to discuss the property of the principal debtor, he was not bound to proceed against an insolvent who had no visible property within the jurisdicof the courts of the state or country in which the suit was instituted against the surety. The party pleading discussion was bound to point out to the creditor property or effects of the principal debtor, which might be obtained and applied to the payment of his debt. He was also bound to furnish money to carry on the litigation, or to indemnify the creditor for the risk and expense of the discussion, 1 Bell’s Law Dict. tit. Discussion, 454; 1 Domat B. 3, tit. 4, § 2, art. 5; Baldwin v.
None of the principles which I have referred to are sufficient to discharge the legal or equitable liability of the plaintiff in error, upon the facts disclosed on the trial; and although this is undoubtedly a hard case on the part of the surety, yet it was an obligation which he voluntarily assumed, and he is only in the situation of hundreds of others who have been compelled as sureties to pay demands for which they derived no benefit, and without the slightest prospect of indemnity from the principal debtor. I am satisfied the judgment of the supreme court was correct, and that it ought to be affirmed.
The court being unanimously of opinion that the judgment of the supreme court ought tobe affirmed, it was accordingly AFFIRMED.