O. Sheldon Co. v. Cooke

Loring, J. There is no merit in these exceptions. The cases relied on by the defendant have nothing to do with the case. The rights of the surety, if he has any, are not now in question; if he has any defence to the claim against him as surety, he can set it up when sued on the bond. Judgment against the principal debtor must be obtained by the plaintiff to charge the surety, because the condition of his bond is to pay a judgment if one is obtained against'the principal debtor. But the judgment is a judgment against the principal debtor and is to be disposed of as such though the surety cannot question it when suit is brought against him. Heard v. Lodge, 20 Pick. 53. McKim v. Haley, 173 Mass. 112. There is nothing in the defendant’s objection to having judgment entered against him. There is nothing about the fact of an attachment of property for the purpose of giving a bond to dissolve an attachment and a special judgment founded on the attachment, which distinguishes it from any other fact, so far as the question of estoppel is concerned. If the defendant represents to the plaintiff that he admits that an attachment has been made, intending the plaintiff to rely on it, and the plaintiff does rely on it and relying on it does not make an attachment, .the defendant is estopped to set up that there was no attachment. In this case the defendant also stated to the plaintiff that he was “ good for any reasonable amount ” ; that estops him from contending that there was no property which the plaintiff could have attached, had the representation not been made. We do not mean to intimate that there would have been no estoppel had not these representations been expressly made. On the contrary, whenever a defendant gives a bond to avoid having [444] his property attached and the bond recites the fact that an attachment has been made, he is thereby estopped. The giving of .such bonds to prevent the making of attachments is a matter of daily occurrence, and there is no question of their validity. For the reasons already given, the evidence objected to was properly admitted. Exceptions overruled; and ordered, that the defendant shall pay the plaintiff double costs from the time when the excepitions were alleyed and also interest from, the same time at the rate of twelve per cent a year on the sum found due.