Briggs v. Law

Headnote

An agreement on the part of a creditor to collect money rateably, of the several parties to a note, &c. on their giving a judgment bond for the amount, enforced by injunction.

THE bill stated, among other things, that on the 25th of October, 1817, the agent of the Lansingburgh bank applied to the plaintiff, and Mosher, and William Fan, Kirk and Joseph Smith, the endorsers of two notes given to the bank, for the balance due op them, amounting to 2,230 dollars,

for security, by judgment. The plaintiff, Mosher, Van Kirk, and Smith, refused to give a judgment bond, unless the agent of the bank would agree, in behalf of the bank, to obtain a judgment with all reasonable diligence against John Ashton and William, Briggs, two other of the makers of the notes, for the amount of the notes, and would obtain the money, in the first instance, if practicable, from Henry ■Briggs, (who, being indebted to the company, had assumed to pay the debt due to the bank, and one of the persons who had signed the notes,) and agree to collect such portions of the money, as could not be obtained from Henry Briggs, from the several other persons who had signed or endorsed the notes, equally, as far as their property would admit. That the agent of the bank accordingly agreed so to do, and the plaintiff, and Mosher, Van Kirk and Smith, gave a judgment bond to the bank, for the amount of the two notes, and the expenses of the arrangement; and a judgment was thereupon entered up, for 4,600 dollars, on the 30th of October, 18J7. That the bank, on the 12th of August, 1818, issued execution on the judgment, for 2,344 dollars and 92 cents, with directions to levy the amount of the plaintiffs only, without having instituted any suit, or obtained any judgment against Henry Briggs, or against William Richards, who was also a maker of one of the notes. That the other parties above named have property sufficient to pay the debt. That the bank, on the 2d of September, 1818, assigned the judgments to the defendant Haw, and refused to interfere to collect the debt equally of the other parties. The bill prayed, that the bank and Haw might be enjoined from all further proceeding on the execution, and that M. A., W. B., Van K., S., and R,, might be decreed to contribute each one seventh of the first note, and one eighth of the second note; and that M., Wan K., and S., might be decreed to contribute each one fifth of the costs and sheriff’s fees on the execution, &c. An injunction was accordingly issued.

The answer of four of the defendants, H., M., A., and

Van K., did not deny the agreement, in substance, on the part of the bank, as stated in the bill, and one of them, M., admitted it, in all its essential parts; but the answer set up matters antecedent to the judgment bond, to show that the plaintiffs, or one of them, ought to pay the debt, instead of the defendants, or any of them.