New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1869-08-04
THE COURTS.
LIABILITY OF THE REPRESENTATIVE OF SURETY
on JOINT BOND.

LIABILITY OF THE REPRESENTATIVE OF SURETY
On JOINT BOND.
Thomas Fielden and William G. PickersgiH
agt Loius Emile LahenS Ct dI.-Untcd States Circuit
Court Southern Dstrict-Before Mr.. Justice Nelson
This IL a bill filed on an Injunction bond against Louis
Emile Lahens aud the representatives Of John Lafarge
The bond executed by Lahens and Laiarge 10 the
was Joint, and not several and Lafarge simply u
surety being in way interested In this suit In which
the bond was given. 10 dated 2jth Of April 1885, and
conditioned to pay Felden Brothers Co all moneys
which may be recovered by them in suit mentioned or
injunction Judgment was rendered for the
hs s nascon suit dismissed 9th June $50 ffarso
died 18th June, 1855 Iaens, the other obgor who was
OF the defendants IN tho SUIT at law, was sovent at
the time OF the rendition OF tho Judgment aud had pc
ttiOned for discharge under the Bankrupt act Laarge
left sufficient assets to satisfy the Judgment at law,
though largo in amount Sl29429 5. The is I'M
portant account Of the largo sum involved aud
the estate Of LafarGs it viii be lost But IN view OF
IT, the principles that must govern IL are not new or DIM
Of the OF the United States agt Price u How 80
PIP. 90, Of, %, and cases there referred to- The
principle Is that equity VIII not hold surety liable
when he Is discharged at law, and that in the case
OF JOINT obligation and the death OF the surety, as
the present case the remedy at law Is gone, as II
respects the legal representatives The cases on this
subject numerous, apd II would be useless " dis
cuss them Several Of them will be found referred 70 In
tho opinion OF the Court in the United States agt Price
and many in the dissenting opinion OF Mr.. Justice
vision IN the Code OF this State has had the effect to
change this rule and TO furnish remedy at law not
wthstandng tho death OF the joint Obgor against the
representatives IL provides In substance that In suit
upon JOINT contract against defendants judgment may
be rendered against any or either OF them severay.
Sections 1885, 27l) These provisions were enacted since
the date OF the bond In question: and II their operation
and effect 10 change the contract Of Laiarge they
must be dsegarded the Legislature possesses no such
power We agree that this bond had been joint and
several suit at Law might have been sustained against
the representatives. and the estate bound for the Judge
ment n such case; Joint suit cond not be main
tanned at Jaw against the surviving Obgor and the rep
resentatves OF the deceased equity would have Afforded
relief See cases In dissenting opinion Of Woodbury., ID
Pr &c. o. 98 And If the Code has the effect Of convert
ing this bond into one joint and several and the Legsa
ture competent TO make the change, then TINS SUIT
well brought, and should be sustained. But as at
present advised ofopniOn that the Prov IN the
Code has such effect; and, what IL still more I'M
pOrant II 10 purpOrted to have such effect IL could not
be upheld on the ground that 1t would change material
part OF the contract TO the prejudice OF the surety La
FARCE, the ObgOr, did not agree TO become severaly
bound, but Jointly; and, material Is this distinction,
~, ni ~ a' si0 oscert,iy
whether the bond other contract joint or JOINT
and several In any view therefore. take OF the
we are OF opinion the demurrer must be sustained
The complalnants have leave to amend.