Weiler v. Hoch

The opinion of the Court was delivered by

Woodward, J.

Granting that the direction which the surety gave to the creditor to “ collect his money, as he would be no longer bail,” was sufficient, in connexion with the long delay of the creditor, to ground an equitable defence for the surety, his subsequent letter of 21st January, 1850, if it did not altogether destroy the effect of the notice, did, at the least, postpone it to the 1st of the ensuing April. Until that time it cannot be pretended that the creditor was under any necessity to take measures against the debtor.

But it is part of the case that on the 6th of April, 1850, Rotnig, the debtor, made an assignment of all his estate, real and personal, for the benefit of his creditors, which resulted, on settlement, in a dividend of $67.94 as applicable to this debt. That is applied as a credit, and that is all, it is fair to presume, this creditor would have obtained had he taken process and accumulated costs. The only delay, then, of which the surety can complain, is from the 1st to the 6th of April, 1850, and that was not long enough to give him a defence. And even if it were, he has no reason to complain of it, for, before the judgment could have been revived, the assignment took effect, and a scire facias would only have increased the burden which the surety doubtless deems heavy enough now. He gave the creditor a legal obligation of the highest character, and the circumstances in proof afford him no equitable defence against it. The Court were right, therefore, in directing a verdict for the plaintiff.

The judgment is affirmed.