The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1869-08-04
NEW YORK CITY.
TIE COURTS.
UNITED STATES CIRCUIT COURT.

Oepurrer to Bhl-Ltnbility Of the Rerresens
tatives Of Surety on Joint Bond.
Before Mr.. Justice Nelson.
Thomas Ftelden ana Wttam C. PtcHers0W o.
Louis Emile Lahens ct al.-This ia bill nled on an
injunction bond against Louis Emile Lahens and
the representatives OF John Lafarge. The bond ex-
ecuted by Lahens and Lafarge TO the obligees, OF
whom the compliments are the survivors, was
Joint and not several, and Lafarge was
simply surety, being in no way Interested
In this suit In which the bond was given. 1t was
dated April 25. 1916, and conditioned to pay
Fielder Brothers & 20. all moneys which may
be recovered by them In suit mentioned, the col
lection OF which may be stayed by said injunction.
4 Judgment was rendered for the plaintiffs In the
suit At law 18th April 1885, and the injunction suit
dismissed 27th June, 1853. Lafarge died 10th June,
1885, Lahens, the other obligor, who one of the
defendants In the suit at law was lnsOvent a. the
toned for discharge under the Bankrupt act La
large lett sufficient assets satisfy the judgment at
law, though large in amount. Sl29. 429 The case Is
VOWED and the certainty that unless recovered out
OF The assets OF the estate Of Lafarge it Will be lost
II are not new or difficult. one branch OF 1t
TAILS directly within the doctrine OF the case
e prs pp eT o.
that equity VIII not hold surety liable when he Is
discharged at law; and that in the case OF Joint
present case the remedy at law IS gone as 1t re-
spects the legal representatives The cases on this
cuss them. Several OF them viii be found referred
to IN Che opinion OF the Court in the United States Vs.
Price; and many more IN tie dissenting opinion OF
Mi. Justice Woodbury. tpp. o., 81, 9S, 10Sl 1t is
supposed that u provision In tho Code
Of this State has had the effect to change
this rule, and to furnish remedy at law
Notwithstanding the death Of the joint obligor,
against the representatives. 1t provides, in
substance. that in o suit upon Joint con-
tract against defendants q Judgment may be rem
dered against any or either Of them severally lSec
ton lsa, 2!4l These provisions were enacted since
the date OF the bond In question: and. II their opera
ton and effect are to change the contract OF La
FARCE they must be disregarded, as the Legislature
possesses no such power. We agree that If this
bond had been joint and several suit at law
might have been sustained against the representa-
tves ana the estate bound for the Judgment and, in
such case, as JOINT suit could not be maintained at
law against the surviving oblgor and the represen
tatves OF the deceased, equity would have afforded
relief. (See cases In dissenting opinion Of Wood.
bury j., PIP. 90, o. 9S And II the code mas the ef
and the LEGISLATURE was competent to make the
change then this suit is well brought and should be
sustained. But as at present advised, am Of opin-
ion that the provision the code has no such eect
and, what Is still more important II It purpOrted to
have such erect, 1t could not be upheld, on the
ground that 1t would change material part of the
contract to the prejudice OF the surety Laarge, the
obigor, did not agree to become severaly bound,
put Jointy and, so material Ia this distinction that
Dls are not unfrequently filed and the suit sustained
or deieated aiter serious htlgatton TO ascertain
Joint and several. In any view, therefore, we can
take OF the case, we are OF opinion the demurrer
must be sustained. The compliments have leave 70
amend lr T'- ~ -