Сн. 9. Art. 17. 2 T. R. 640, Martin v. Court.Dougl. 168, and Cowp. 525, Taylor 1786, and took a counter bond to pay March 1784. And Buller, Justice, said a surety may lend his credit, if he will, only for three months. A surety damnified before payment must declare specially. 8. And in another case it was held, the surety was allowed by his counter security to get the amount of the debt into his hands from the principal, one day before the original debt become due, and so one day before the surety could be held to pay. The counter security was an absolute bond, with an 2 W. Bl. 794, endorsement, shewing it was to indemnify. v. Mills. Goddard's case.--3 Wils. Paul v. Jones. 9. But in Taylor v. Mills the court held, that the surety 13, 17, Chit- was not damnified, till he was called on and had paid, and ton's case.-- could not sue on the implied promise before; (in the last case IT. R. 599, he paid on a judgment :) for till payment of the debt or judg--3 Wils. 346, ment, there is a possibility the creditor may get his debt of the Young v. principal; but still the surety may be specially damnified in Hockly, Chil- the above ways, and in others, though not by the payment of the debt. The surety's body being in execution, is equal to the actual payment of the debt, as it respects the surety himself but it is conceived not as it respects the principal, and the amount of damages to be attended to. ton v. Chan. Cases 246.-Chan. R. 34, 120, 150.-2 Com. -3 Bac. 78. 10. In this action for monies paid by a surety, another material question is, how far another surety is liable, and when. Sureties are equally charged in equity, Hob. 264, and in D. 667, 668. equity one surety may compel another to contribute towards a debt for which they were jointly bound. If a surety pay, he shall be relieved. If one surety pay the whole, he shall be relieved against the other sureties. If two be jointly bound, and one dies, equity will deem his representatives to be charged pari passu, with the survivor. Ca. Ch. 246. -1 Ch. R. 35, 120, 150, 1 Vern. 456. 11. So if three are bound in a bond, recognisance, &c. and one only is sued, and pays the whole, and another is insolvent, he who has paid shall have contribution against the third for a moiety, though in another case it was held the third should pay only a third. Quære, as to this last case. 12. So by the custom of London, one surety paying the whole debt shall make the other sureties contribute. 13. As there is no court of Chancery in Massachusetts, to carry these principles, founded in justice and equity into effect, it is done by this action for money paid, laid out, and expended; the practice of this State hitherto has been limited assumpsit lies in this respect, but as far as it has gone, it has adopted the same course nearly, as chancery has pursued. 3 Cranch. 493, where on a letter of credit. Mass. S. J. §14. Therefore where, September 2, 1767, one William Court, Ken- Tufts sold land to B. Tupper, Obadiah Hussey, Robert Bar nebec Coun ty, July 1799, Tupper's adm. in review, v. Hussey. ker, and James Folger, and gave them a deed as joint tenants, and they paid him a part of the purchase money down, and gave him their joint and several bond for £460 13s. 4d. the residue. Prior to 1781 Hussey and Tupper each paid his quarter part of the bond, Folger paid £100, and Barker £22. Barker died insolvent; the administrator of Tufts got judgment against Hussey in 1791 for £599; this his estate paid. Folger, as was said, was insolvent. In 1793, the administrator of Hussey's estate brought this action against Tupper, and July, 1796, recovered half the sum Hussey had paid, debt and costs, about £300; and on this residue in 1799, Hussey's administrator had this judgment confirmed. And the court held, that Tupper was liable in this action for monies paid &c. to pay half what Hussey had paid; that is, half of the deficiency of Folger and Barker, and merely as joint obligors; for Tupper had long before paid his own quarter part. 15. The same principle holds among sureties. Hence, if there be three, and one fails, the other two must share the loss equally. CH. 9. Art. 17. Keith. 16. In this action it was decided, that an action for money 1 Mass. R. had and received does not lie for a surety who has paid his 139, Ford v. principal's debt, but one for money laid out and expended lies for him, and he may recover, though the money was paid on a usurious contract, which the principal might have avoided, for it is not for him to say his surety ought to have avoided it. Mass. 1793, § 17. If the surety pay more than the debt, it is his own loss. S. J. Court, As in this case, December, 1786, Wheeler as principal, and Simonds v. Simonds as surety, gave their note to John Fiske Esq. to pay Wheeler. him, February 26, 1787, £600 in the securities of the United States of a certain description, then worth 2s. 2d. in the pound. Wheeler paid all but £130 and interest; in all, £150. November, 1792, Simonds, the surety, paid this sum £150, near 20s. in the pound, or about £105 above the value of the debt in the market, February 26, 1787, when payable. Simonds then, as surety, sued Wheeler, as principal, to recover of him the £150; but June term, at Ipswich, 1793, recovered only £45, the real debt. In the case of this note, after several arguments, it was held, that the value of the securities. February 26, 1787, the day of payment, was the measure of damages, and not their value at the time of the trial. See Fiske v. Wheeler. 18. In this case Mrs. Ansart, the deft., was executrix of 3 Mass. R. 319, Coburn her husband's will, and for a debt due to his estate took a note v. Ansart & to herself as executrix for $189,53 from his debtor; on this Locke, her note Locke, the trustee, collected the money as her attorney; VOL. I 26 trustee. Сн. 9. the court held, that it was her own debt or money, and Locke Art. 18. was her trustee and debtor, and that she might have sued the note in her own right, and naming her executrix was but surplusage. 3 T. R. 524, Currey v. Edenton. 8 T. R. 308, tridge & al. The surety cannot swear Exall v. Par the debt is due to him § 19. If a broker buy goods for his principal, and agree for one third per cent. to indemnify him from any loss on the resale; if the principal have a fair opportunity to sell to advantage, but neglect it, the broker is discharged of his undertaking, as surety to guarantee the price, though the principal afterwards be obliged to sell at a loss. § 20. Where the plt. pays by compulsion. In this case the three defts., lessees of certain premises, were bound by covenant to pay the rent. The plt. put his goods upon them, (his carriage,) after he knew that two of them had assigned their interest to Partridge, the other co-lessee. He received the plt's. carriage, which was taken as a distress, for the lessor's rent. The plt., to redeem his carriage, paid the rent in arrear, compelled as he was by the circumstances of the case, and took a receipt from the lessor's attorney, as so much money 3 Wils. 262, received on account of the three defts. The court held, that 272, Goddard the plt. ought to recover against them for so much money paid, v. Vanderheyden. laid out, and expended for their use, and that he was not held to look to Partridge alone. from the principal, till the surety has paid his debt. Civil Code, 1805, Book 3; title 5. 6 T. R. 176, 169, a. 2, 5. 21. By the French law, the surety may oblige the creditor first to call on the principal, pointing out the means of pay ment. § 22. The surety's deed does not extinguish the principal's 177.-Seech. simple contract debt, as the principal's deed or bond does; Several cases one reason of the difference is, several actions may be against of counter se- several distinct contractors for the same debt, but several accurity to the tions cannot be against one and the same person for the same debt. surety. 2 Wils. 141, Marriot v. Lister. 3 Wils. 388, Stevens v. Hardy. 2 Wils. 141. Imp. M. P. 193. 1 Dallas 429, 430.-S. C. Pennsylva ART. 18. For monies lent. If the plt. sue for monies lent, it must be to the deft. himself. And agents and principals &c. § 1. The word lent is a technical term, and can only be for lent to the deft. himself, and not for money to a third person. If it be advanced or paid to a third person, it is not money lent. money § 2. But assumpsit for money lent to the wife, at the request of the husband, is good; this is, in fact, a loan to him. The money was lent to her, while he was absent on a voyage, at his request before he sailed. But it is well to declare for monies delivered to such third person at the deft's. request. The cases on this head require but little attention. 3. In an action for money had and received, no title deed of land is evidence of the ground of action, but it is of the right v. Mel- sum; and good evidence, when not the immediate foundation nia, Dr. At cher. of the action, but only leading to it. In this case the deft. had received the monies for lands not to be found. Many authorities were cited in this case. The material ones of those for the deft. were Cowp. 414, 418, 818, 819; Dougl. 132; Salk. 210; Cro. J. 506; 2 W. Bl. 1249. Those for the plt. were, Dougl. 18; Salk. 22, 284; Buller N. P. 31; 2 Stra. 915; 2 Burr. 1088. CH. 9. Art. 18. Long v. § 4. Several cases. Customhouse duties paid by the plts. 7 Mass. R. agent and principal &c. Assumpsit. A Demerara merchant 268, 271, sent to the defts. forty hogsheads of sugar, to be delivered to Greene & al. them in Boston; but they were carried to Portsmouth by the master. The plts. and Swett, since deceased, who undertook to act for the defts., gave their bonds at the customhouse im Portsmouth for the duties on the sugar, afterwards transported to Boston to the defts. The plts. sent the drawback certificate to their agent in Boston, instructing him not to deliver it to defts., till they should indemnify the plts. as to the duties. Defts. sold the sugars as entitled to debenture, but could not obtain the certificate of the plts., and because not so indemnified. This the defts. refused to do. Hence, the drawback was lost, and the defts. had to allow it to the buyers of the sugars. Judgment for the plts. to the amount of the duties they paid; for it was reasonable the plts. should be indemnified, and till this was done, it was not unjust for them to retain the certificate, and the court added, "if this is not a sufficient excuse, then this is the common case of one man having paid money for another at his request." Where the real 12 Mass R. owner of the goods imported was liable, only as co-surety in a 98, Taylor t. customhouse bond; the plt. imported his goods, and immedi- Savage. ately consigned them to A, who became principal in such bond, and the plt. and deft. his sureties. Plt. paid the bond and recovered half of the deft. beath v. Hal Austin. 5. Agent and principal, as to contracts. This was as- 1 D. & E. sumpsit against the deft., and held, an officer appointed by the 172, Macgovernment, and treating as an agent for the public, is not dimand. liable to be sued on contracts made by him in that capacity. East 195, And not, even if he contract by deed, if on account of the govern- 579, Unwin r. Wolseley. ment. 1 D. & E. 674, 679. This was covenant on a charter--3 Cain. 69, party, in which the deft. contracted on account of his majesty, Brown v. and the court said, "and whether the contract be by parol or by deed, it makes no difference, as to the construction to be put upon it." So Brown v. Austin is on the same principle. Ch. 9, a. 20, s. 10. Brown procured witnesses in a public trial. for the United States, and held, he was not liable to pay them. Hodydon v. Dexter to the same effect. 1 Cranch. 345. The law is the same as to an agent of a foreign government. 3 Dall. 384, Jones v. Le Tomb.-2 Bin. 201-1 Wash. 199. 6. So a public agent who engages for the public is not liable generally &c. This was assumpsit by the master of a revenue-cutter, for the care of his vessel, and services of himself and men; and for money had and received &c. Facts. Jos. Otis, a collector of the United States in Barnstable, was infirin, and incapable of business, and his son, the deft., did the business of his office, and had the whole control and management of it, as deputy-collector, except, for the most part, official papers and accounts were in his father's name, and signed by him. Feb. 2, 1809, the deft. proposed to the plt. to charter or hire his schooner Betsey, as a revenue-cutter, and to employ him as master, with such men as he, the plt., should engage and employ as part of the crew; the deft. reserving to himself a right to engage a mate and the rest of the crew, to be attached to the customhouse, and in permanent service for six months, the vessel at $180 a month, and the master and crew at the stated wages in the revenue-cutter. These terms the plt. accepted, and the bargain was closed. Thirty-six days after, the plt. and crew were discharged by the deft., who said, he would pay for their services when furnished with the money, as the witnesses understood it. The plt's. account was rejected at the Federal treasury, on the ground the deft. had stated the plt. had been paid for all services. The said proposals were in pursuance of directions from the treasury, dated Jan. 16, 1809. In April or May, the deft. received $1000 from the treasury to pay revenue-cutters; there, however, was some evidence, part of this sum was received in Feb., and had been applied to pay revenuecutters previously employed. The deft's. letters to the secretary of the treasury were to shew the hiring &c., for which the plt. demanded payment, were only a proposal on the plt's. part, and not a conclusive contract. Jury found a contract of, and a verdict for, money had and received. The court held, "that where a public agent makes a contract in the name and behalf of the government, it is a point well settled, that the agent is not liable to the action of the party contracted with, who must look to the government; but if such agent should deny to the government that he had entered into such contract, and by such interference prevent the party from his remedy as against the government, he must be personally liable, as he has in his conduct, in effect, disavowed his acting in character of a public agent." So the verdict for the plt. is right. Quære, if the jury believed the deft. had received from the treasury monies intended to meet the plt's. demand, and he had refused to pay it over, they were correct in their verdict for monies had and received. What a public agent may give in evidence, Cabot's case. |