U.S. Supreme Court
Pickersgill v. Lahens, 82 U.S. 15 Wall. 140 140 (1872)
Pickersgill v. Lahens
82 U.S. (15 Wall.) 140
A general statute enacted that a party might stay by injunction proceedings in a suit at law on executing a bond, "with one or more sufficient sureties," conditioned &c. A., a defendant in a case at law, being about to apply for an injunction to stay that suit, did accordingly execute a joint bond with B. as co-obligor; B. having no interest in the suit nor deriving any benefit from the execution of the bond. Held that there was nothing in the language of the statute which compelled the bond to be joint merely, instead of joint and several, and that being in chanrobles.com-red
terms joint merely, and B. being in fact but a surety, there was no right in the obligee (A. being insolvent) to pursue B.'s estate in equity, B. having died before A. and B.'s estate being so discharged at law.
A statute of the State of New York thus enacts:
"No injunction shall be issued to stay the trial of any personal action at issue in any court of law until the party applying therefor shall execute a bond, with one or more sufficient sureties, to the plaintiff in such action at law in such sum as the chancellor or master allowing the injunction shall direct, conditioned for the payment to the said plaintiff, and his legal representatives, of all moneys which may be recovered by such plaintiff or his legal representatives, . . . in such action at law, for debt or damage, and for costs therein."
With this statute in force, Pickersgill sued Lahens at law in the superior court of New York, a common law court, on certain endorsements. Thereupon Lahens filed a bill in the court of chancery of the state for relief against the endorsements, and having done so, applied under the above-quoted act for an injunction to stay the trial at law. The court upon the filing of a bond meant to be such as the above-quoted act required, granted a temporary injunction staying the suit at law till an answer to the bill in chancery should come in. The bond was the joint bond (not the joint and several bond) of Lahens and one Lafarge, this Lafarge not having been any party to the suits already mentioned, nor interested in them, and not deriving any benefit from his joining in the bond. The bond recited the action at law against Lahens, the bill and injunction in chancery, and the condition of the instrument was that the obligors should pay all moneys which should be recovered in the suit at law. Answers to the bill for relief having come in, the action at law proceeded, and a judgment was rendered against Lahens for $129,000. Before this time, Lafarge had died, and at the time Lahens had become insolvent. Thereupon Pickersgill filed a bill in equity against the executors chanrobles.com-red
of Lafarge, to have his estate pay the amount of the bond, with interest from the recovery of the judgment against Lahens. The executors demurred, assigning among other grounds of demurrer that it appeared by the bill that Lafarge was not severally bound by the bond, but only jointly bound with Lahens; that Lafarge received no consideration for becoming an obligor; that he was not interested in any of the matters in consequence whereof the bond was given, and was merely a surety therein, and that he departed this life before the filing of the present bill, leaving Lahens surviving him, who was still alive. The court below sustained the demurrer, acting doubtless on the ancient principle of equity, announced with a clear mention of its grounds by Grier, J., for this Court in the United States v. Price [Footnote 1] that after the death of one joint obligor (the other surviving) the estate of the one deceased cannot be pursued in equity unless there was "some moral obligation antecedent to the bond," the which obligation the court declared could not exist where the deceased obligor had been but a surety. To review the action of the court in sustaining the demurrer this appeal was taken. chanrobles.com-red