Swift v. Crocker , 38 Mass. 241 ( 1838 )

Dewey J.

delivered the opinion of the Court. Was the claim of the plaintiff due and payable at the time of instituting his suit ? If not, the subsequent attaching creditors will sustain their petition, and the attachment by the plaintiff must be dissolved.

The mere liability of one as a surety for another on a note not yet due, will not of itself give a cause of action against the principal in favor of the surety. It may however furnish a good consideration for a promissory note, upon a promise, either express, or implied by law, on the part of the surety, that he will pay and discharge the debt of his principal; and such a note may be the foundation of an action and a valid attachment, at least to the extent of the actual payment made by the surety before taking judgment in his action.

In the present case, had the note and bond of indemnity been executed seasonably, ,no question could have arisen as to the legality of the claim of the plaintiff. Nor would the mere filling up of the writ before the execution of the note and bond, be necessarily fatal to the action. A writ may be considered as made at such time as it was in fact designed by the plaintiff for actual use, where the justice of the case requires it. If the plaintiff can show that his writ was only to he used upon a certain contingency, he is allowed so to do. If it were placed in the hands of an officer with directions not to serve it until after some other act was done, it may be considered as made after the performance of such act. The difficulty in the present case arises from the fact, that the writ was actually used for some purposes before the signing of the note declared upon ; although it was not intended to be used for the purpose of making an attachment of personal estate until afterwards, yet there was an attachment of real estate returned on the writ prior to the execution of the note. When this attachment was made, the suit was instituted, and the right of the plaintiff to consider the writ as made prospectively and only to be used on a certain contingency, could not be further extended. The claim demanded in this action was not therefore justly due and payable at the time of instituting the suit, and the attachment must be dissolved.