The advocate., 1891-09-23

IN obtaining the administration being denied by
Livingston, It was doubtful whether he could be
removed on that ground, and new security
would afford her every protection, consented to
abandon the charges Of fraud, and that the order
be entered. MIR. Livingston theEeupOn procured
and nled new bond as administrator, signed by
the two cO-defendantS in this action In the
penalty Of $4,000 each. Subsequently, after
tedious prOtraCtiOn before the surrogate, do
cree was made by the surrogate In September.
1868, directing Livingston to pay certain debts,
allowing him commission, etc., and ordering him
to pay the plaintiff the sum Of 81, ,l66SO Livngs.
ton appealed from this decree to the supreme
court, by which all proceedings against him
were stayed.
In the latter part of April, 1868, his appeal was
dismissed for want Of prosecution, with costs,
and few days afterwards, after personal de-
mand for the payment under the decree upon
Livingston, Mrs. Maylan'S counsel applied to the
surrogate for an attachment against Livingston
for not paying over the money This the surrogate
refused upon the ground tnat an attachment
was harsh remedy, and that Mrs. Waylan must
first Issue an execution upon the decree against
Livingston, and II that was returned unsatiSfed
she must sue the suretieS, and II she then did
not get her money he would issue an attach
ment, and not until such steps had been taken.
Execution was thereupOn issued on the decree
against Livingston, upon which the sheriff real
lied the sum OF $l4.1l, and that was the total.
Execution was, Of course, re urned unSatls1ed on
the 26th Of June, 1868. In July the suretleS were
notified Of LivlngstOn'S defaults, and requested tO
nov IN do md a. APlu In
tember this action was commenced against them
on the bond.
The defendants get up through their counsel
aS defense that Livingston asked them to sign
their names to the bond without telling them
what 1t was, saying that it was mere matter Of
form, and that he wanted them to sign their
names; that Livingston was their landlord, and
could favor them or dISfsVor them aS he saw at,
and to Obllge him and insure his win they signed
the bond without any knowledge Of the resp0n-
Sibility. One Of the defendants also testified that
there was no seal on the bond opposite his name,
and the defense claimed on this point that the
bond was therefore void, and for both reasons.
They further claimed that the plaintiff or her
attorney were guilty Of fraud and negligence In
cOnceallng from the bOndsmen the previous
amount Of Mr.. Livingston and the frauds which
they alleged against him, and also that they had
cOnSplred with Livingston In procuring the sig
nature Of the Sureties upon the bonds In order to
secure the plaintiffs debt
Judge DAILY ruled that the fraud Of Mr.. LtU-
tRgstOD In procuring the signatures could not
Affect the plaintiff; that there was not the slight
est evidence to sustain the charge Of conspiracy
with Livingston, nor to show that the plaintiff
was In any way privy to or knowing Of these
representations; that neither she nor her attoE-
ney was under any obligation or duty to seek
out the suretleS and communicate to them the
precious frauds of LiUtnOStOD: that such q pro-
position as q matter Of law was entirely anOIna-
lOus and unheard Of; that az to the ahixlng the
seal after the bondSmen had signed, II such were
the fact, 1t did not Vitlate the bond for two
reasons: First-That the bond WOnld have been
perfectly good without any seal, as the SuretieS
could not be allowed to set up defect In bond
given by themselves, and which the creditor,
for whose benefit lt was given, had seen nt to
object. The objection might have been taken
by the plaintiff, but not by the Sureties Second
That the seal not having been put upon tho
bond by the plaintiff, or with her knowledge
and consent, and, being the act Of stranger az
to her, did not vltlate the bond, and thirdly that
the addition Of the seal was In no event ma
lerial alteration, because the bond would have
been good without It, az before stated, and the
seal was guperhuity.
In commenting upon the case Judge DAILY said
It was unprecedented In enOrmity In his expert
ence on the bench or at the bar It was 0 great
hardship thar these deRAndankR who were
honest, straightforward, though perhaps rather
too unsuSpecting men, should suffer through the
devices Of this man Livingston, whom the eOun-