Union B. & L. Ass'n v. Hull

Peb C ubi am: We think the affidavit was insufficient to prevent judgment. The association plaintiff had loaned one Henry W. Wenger certain moneys secured by mortgage upon the real estate of said Wenger. At the time of said loan the premises in question were liable to mechanics’ liens, the six months riot having expired; and, to protect the association from this risk, Wenger gave it the bond in suit, with the appellant as security. He sets up in his affidavit (a) want of consideration; and (V) that the money was advanced by the plaintiff to Wenger prior to the execution and delivery of the bond of indemnity on which suit is brought. The bond is under seal, and imports consideration. That it was subsequent in point of date to the loan and the mortgage is immaterial. The plaintiff had a right to take, and Wenger to give, additional security; the appellant had a right to put himself in the breach as a surety. He has done so, and has no cause to complain that he is now called upon to make his engagement good. Judgment affirmed.