Valentine v. Farrington

Headnote

Where e party is attempted to he fixed as a principal in a money bond and the defence is that he wag a surety only and had required the obligee to sue the other party as principal and such obligee had neglected to do so: this is new matter, and, when put in issue,must be made out distinctly and beyond all reasonable doubt. A full and explicit notice or request from the surety to the creditor to proceed without delay to collect the amount from the principal debtor, must be proved j and, in order to exonerate the surety, it must also appear that the creditor has improperly refused or neglected to do so, and, by such refusal or neglect, the means of recovering the debt of the principal have been lost by intervening insolvency or from some other cause.

A bill by a bond creditor, upon a joint and several bond, will be sustained against the heirs and devisees of a deceased obligor, although filed before the legal remedy has been exhausted against the surviving obligor. It is only necessary to make the latter a parly.

Although an action is brought by a creditor of a testator against the executors, which proceeds only to a plea, and then the creditor files abill onbehalf of himself and others, to ac- , count, and makes the executors and devisees parties, who answer, no valid objection toa decree arises on the ground of the action pending at law: because the executors can be no longer vexed by the latter»

This was a bill by a bond creditor against the devisees of a deceased obligor, for an account and payment and satisfaction out of real estate.

The bond had been given on the sixth day of May, one thousand eight hundred and seventeen, by Jonas Farrington (deceased) and George Farrington, junior, to the complainant, conditioned to pay one thousand dollars, with interest. The obligors bound themselves, their heirs, executors and administrators, jointly and severally, for payment of the money.

In the month of September, one thousand eight hundred and twenty-two, the said Jonas Farrington made his will; and thereby devised his estate, real and personal, to his children and grand-children, who were defendants in the cause, and he appointed them executors thereof. He afterwards died; the will was proved; and letters testamentary were granted to two of his sons. During the year one thousand eight'hundred and twenty-four, the complainant commenced

a suit at law against the executors upon the bond. They pleaded plena administravit before notice of the bond. No n further proceedings appear to have been had at law.

In the month of April, one thousand eight hundred and thirty, the complainant filed her bill, on behalf of herself and all other creditors of the testator, asking for an account from the executors of the personal estate and to have the same applied in a due course of administration, and praying also a discovery of the situation and value of the real estate and to have the same sold for the purpose of paying debts, &c. The answers admitted the making of the bond and, generally, all the other allegations in the bill; but it set up, by way of avoidance or defence, that the bond was given for money borrowed of the complainant by the surviving obligor, George Farrington, junior, and the testator joined in the bond as a surety; also, that after his death, the complainant was requested to take measures for compelling the principal debt- or to pay the money, he being at the time possessed of property and well able, and yet the complainant refused or neglected to call upon him for payment and omitted so to do until he became insolvent; and that the loss of the money, by his insolvency, was owing to the negligence, in this respect, of the complainant, who, therefore, ought to bear the loss, she well knowing the testator was security only and not the principal debtor. In order to uphold this defence, several witnesses had been examined; and some counter-testimony also taken. It was difficult to say, from the defendants’ evidence, whether the testator was merely a surety in the bond or the borrower himself, and, therefore, the principal debtor; at any rate the point was left in doubt. The subscribing witness to the bond, who was examined on the part of the defendants, testified, that he was present when the money was loaned for which the bond was given and the application for it was made through him, in the first instance, by Charles Farrington, and George Farrington junior, they proposing to give their father, the testator, as security, and the complainant consented to let them have the money upon his security; that, afterwards, George came for the money and stated that Charles had declined being a party, and he, George, and the father had concluded to take the

fnoney, and the bond was accordingly made and the witness handed over the amount, which had been left with him by the complainant, that is to say, to George the sum of two hundred dollars, and to the father, the testator, a certificate of a deposit in bank for eight hundred dollars. How the money obtained upon the certificate was applied, did not appear, but it was in evidence that the son George had requested the bond might remain with the person through whom the loan was obtained, for the convenience of himself in calling to pay the interest, and also, that he had paid the interest for several years in succession.

The son George, who was made a defendant, had suffered the bill to be taken as confessed.