Sellick v. Munson

Hutchinson, J. This is the same action in which a new trial Was granted by this Court in January, 1826. (See the report of that decision in 2d Aik. Iiep. 150.) There has since been a trial in the County Court, and a verdict for the defendant, and exceptions taken by the plaintiff, and the cause again is brought up on a motion for a new trial founded on those exceptions. — > The facts disclosed in these and the former exceptions are nearly the same in general. In two particulars they are said to differ. 1st. The former exceptions state that any balance in the hands of the defendant, Oct. 7,1821,was, by the agreement of the parties, to be applied by him in payment of those demands, on which he had signed as surety for the plaintiff. The present exceptions, in reference to the same balance, state, that the defendant promised he would, on said 7th day of October, pay the same to the creditors, to whom he was so holden by signing in behalf of the plaintiff. Upon comparing these expressions we discover no difference in their legal import. By each the defendant was bound to the same thing. The second difference contended for by the plaintiff’s counsel is, that the former exceptions state the defendant’s neglect, merely, to perform that undertaking, while these now under consideration state the same neglect, and superadd, that he, in the month of February, 1822, declared to the plaintiff, that he never would pay over said balance to said creditors as he had agreed. This would be a very important distinction between the two cases, if the whole transaction were confined to these parties only,and third persons had no power over the defendant to compel payment.— But that is not the case. The creditors, to whom the defendant had signed, could sue him any day, and compel him to that payment, which, as relates to the plaintiff, he thus refused. And, the property being originally placed in the hands of the defendant for his indemnity against the notes he thus signed to the creditors of the plaintiff, that liability must be taken away by the plaintiff, and notice that it is so given the defendant, before the plaintiff can call the pledge out of the defendant’s hands. As the defendant was holden topay over the balance by a given time, to wit, Oct. 7th, his Reglect and refusal were alike improper; but they equally left the 14 defendant liable to be sued by the creditors on the notes he had t ^ . signed for the plaintiff. Under all the connected circumstances, therefore, of the case reported, and the same case, arising on the; new exceptions, the rights and liabilities of these parties are the same in each case, and the decision in the Report may well govern the case now. But, if that decision were not kno'wn, we are all satisfied with the result to which we have arrived, which is, that the judgment of the County Court be affirmed. Note. After the above judgment was announced, Mr. Bates, for the plaintiff made a formal written motion that the costs in this suit should be deducted from a larger sum in costs, decreed for said Munson to pay to said Sellictcy in a suit in chancery decided in this court in 1828. The counsel for Mmison objected on account of their lien upon the costs in this suit. The Court asked the plaintiff^ counsel if they objected to the support of this lien, after the decision of Chipmaji et al vs. Heart ?*— They answered they had none. The costs were then taxed ; die amount of the lien ascertained and deducted, and the remainder directed to be offset against so much of the cost Pellicle had recovered in the Chancery suit. Mr. Bates, for plaintiff. Mr. Phelps, for defendant.