The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1854-06-30

Supreme Cvuxs-0ensraA Terra
gU1y1Ds
Jus1 29.-Heary GyaU, -, vs. Win. r. Outer.
by the Gourt-Rooseveh, 1.-THE defendants
were guarantors: They loaned their names ~ In
dts which would otherwise have been withheld
Under the plea of alleged want Of due diligence in
prosecuting the primary debtors, they now seek to
escape from the consequences of their engagement.
s M se s s1 Ssr SaSss ss s
ness in Michigan. When the purchasers failed to
pay, the creditors who had trusted them brought an
action in the United States Circuit Court in Mich
gan; but the Sheriff OF Marshal to whom the pro
as not found. Although, therefore, the suit was
against both, the Judgment was against one And
this Judgment, it Is said merged the joint demand
and converted i into claim against one only thus,
other debtor (; whereas, had the creditors brought
their suit, as they might have done, in the State
Court, the judgment, in virtue Of q special State
law, would have been, Il is said against both and
The argument, it win be perceived, assumes that,
by the proceeding In the United States Court, one
OF the debtors was discharged, and that that pro-
ceeding was the voluntary and improvident act Of
the creditors. And Is 1t true In point Of law that
judgment against one Of his two joint debtors, In all
cases and under all circumstances, discharges the
other, and that the other, if afterwards sued upon
the joint demand, may plead the previous unsatisfed
Is it reply to such plea to say that the creditor
did not elect, but was compelled, to take judgment,
he did, against the one alone, because the other
had absconded? The doctrine Of merger is founded
upon convenience convenience to the Court and
convenience to the parties the consideration
that two suits should not be permitted where one
was sufficient. Does this reason apply in favor Of
man who had rendered joint, and of consequence q
rather what right could he have, to complain of dou
BILE vexation? Is it possible in such case for the
creditor to obtain full remedy except by two suits
Even with the aid of special statute, the Court
der no binding personal Judgment against him;
that although In four against two, the recovery in eff
feet, pursued in that mode, would be only against
one. Wherein, as remedial proceeding, then, would
advantageous than the judgment which was reco
vered in the federal court? In either case the record
would have shown that the course of action was O
joint demand, and that if an eectual recovery was
tiffs. They sued both, but both were not found
Besides, federal judgment in some respects may
be preferable to State Judgment Stay laws and
Supreme Court Of the United States had decided
decision, which in subsequent cases brought within
their jurisdiction they were likely to follow that
separate judgment against one partner, even where
taken without necessity was no bar to subsequent
suit against the other. 1t may be that that adudi-
cation has since been partially qualified; yet the
reasoning which it rests, in all cases of necessi.
ty still remains. At all events, there cannot be
doubt, think, that court Of equity in such case
would eDjoin the defendant from awaiting himself of
such technical BARN analogy to the practice
which allows bill in equity against the represen-
tatives Of deceased partner after an unsatis-
fed judgment against the survivor, notwith-
and double litigation. Double litigation is
an evil but like other evils If necessary to the at
tainment of justice, it must be submitted to- espe
cay by those whose acts or omissions have created
I'm itvy AhAA xl.AAI1r
the Judgment in Michigan were in form against two,
but in fact against one or both in form and in fact
against only one, it would in neither case deprive
the parties of an efficient remedy subsequently, in
some form, against the other At all events, the
suit brought in the federal court, being bona fde
exercise of sound discretion and especially as no
actual loss from that election is either proved or
pretended, there il no ground for charging the Gre
The effort made by them to recover Of the principal
debtors was legal effort, and proper effort, and
the only one, as it appears to me, which they were
bound to make. Its fruitlessQess ia no answer to
as possible by all the parties was the reason for
dering the guarantee and the motive for requiring it.
1t seems to be assumed-and some judicial dicta
have OF times given countenance to the idea-that
IN actions against guarantors all sorts Of technical
ties, whether equitable inequitable, rational
Irrational, to be invoked by counsel and encour
aged by the Court, to prevent recovery. For my
self do not believe that the common law, which in
us genera scope prOIeRSeat 70 ne founueO ON common
sense and common honesty, is inconsistent tc
lose sight OF these attributes the moment it ap
proaches the boundaries of suretyship. What differ
e
consideration is the creditors parting with his
goods on the faith Of the engagement and the bene
fit the surety receives, or expects to receive, from
obliging his friend. It is not only good, but o
valuable consideration-as much 30, in every just
sense, as if the surety had himself become the pur
chaser. Judgment for plaintiff