Appleton v. Bascom

Wilde, J. This is an action of debt on a bond given for the liberty of the prison limits, and the question is, whether the principal in the bond, after the giving of said bond, committed [171] an escape, by going without the prison limits. And this depends on ascertaining the time when the contract was made, on which the judgment was recovered, upon which the execution issued, by \ irtue of which the said principal in the bond was committed to prison. The said judgment was recovered in an action for money paid by the plaintiffs, and which they were obliged to pay, for said principal, by reason of his breach of the condition of an administration bond, which they had executed as his sureties. The action was founded on an implied promise ; and the question is reduced to this, whether the promise was implied by lew at the time when the plaintiffs became sureties, or not until they paid the money, when their right of action against the defendant first accrued. And we think it is well settled, that when a surety becomes bound for his principal and at his request, the law implies a promise of indemnity by the principal to the surety to repay the latter all the money he may be compelled to pay the creditor in consequence of his assumed liability. So the law is laid down in Wood v. Leland, 1 Met. 389; and so it was decided in Gibbs v. Bryant, 1 Pick. 121; in Toussaint v. Martinnant, 2 T. R. 104; in Howe v. Ward, 4 Greenl. 200; and in many other cases. In Gibbs v. Bryant, there had been given a written promise of indemnity, and the court say that “ the written contract produced contained nothing more than what the law would imply.” And so the law has been well settled for a long time, although in ancient times no action at law could be maintained where a surety had paid the debt of his principal ; the only remedy being to be had in a court of equity. But very many equity principles have been adopted by courts of law in modern times, allowing actions to be maintained on implied promises by the party to do what justice and equity require to be done, where there is no express contract. And the implied promise of indemnity in the present case must be considered as made at the time when the plaintiffs became responsible to the creditor on the bond. The plaintiffs’ liability was the consideration of the principal’s implied promise of indemnity, and the promise must be considered as made at the time when that lia [172] bility was assumed. And the plaintiffs, when they paid the money, might have declared on said implied promise, or for money paid, in common form, as the declaration was. The time of making the contract is not to he determined by the form of Lie action: The other objection made by the defendants’ counsel is, that the law does not imply a promise to the plaintiffs jointly ; and the case of Gould v. Gould, 8 Cow. 168, seems to countenance this objection. But a more reasonable doctrine is maintained in other cases: Osborne v. Harper, 5 East, 225. Pearson v. Parker, 3 N. Hamp. 366. Jewett v. Cornforth, 3 Greenl. 107. According to the decisions in these cases, when money is paid by two or more sureties jointly for the principal, or when the money paid is raised on their joint credit, their proper remedy for reimbursement is a joint action ; but if they pay separately, then their proper remedy is by separate action, and a joint action cannot be maintained. In either case, however, the action whether joint or several, is founded on the promise of indemnity expressly or impliedly made- at the time when the sureties first became bound. When a promise is implied by law, such a promise is implied as will give to the party, who may suffer damage by the breach of it, a suitable and proper remedy. We consider, therefore, the promise of Bascom, to indemnify his sureties, as made to them jointly and severally ; and as it appears that they paid the money, which they became liable to pay, jointly, they were well entitled to a joint action against him for reimbursement. Judgment for the plaintiffs.