Commissioners v. Canan

Per Curiam. This is a proceeding against sureties on a bond conditioned for the collateral performance of a covenant to pay over, which certainly was not merged in the action for money had and received by the principal. The action was not on the bond, the condition of which was to pay only in case the principal did not; but on the direct evidence of the debt which arose out of the receipt of the money: and it surely could not make the case the worse for the creditor, that the debt had been established and default of payment conclusively proved by a judgment at law. If a judgment directly for the debt were to bar an action on a collateral covenant to secure payment of it, then a recovery against an administrator, in the first place, would prevent a recourse to his administration bond, which, however, is had every day. The judgment therefore was properly rendered for the plaintiffs. Judgment affirmed.