Montgomery v. Russell

delivered the opinion of the court.

This case has been twice before the Supreme Court before the present appeal. In the two previous instances, verdicts of juries had been obtained, on which the judgments were based. The cause was remanded on the first appeal, in consequence of the defendant having been improperly ruled to trial. On the second, it was sent back because the appellate tribunal could not fully concur with the jury, in relation to their conclusions on the facts. The object of this remanding appears to have been to obtain a determination on the facts of the case by another jury. On its going back to the court below, the parties waived their right to a trial b}T jury. The cause was submitted to the judge a quo, who rendered judgment in favor of the plaintiff, from which the defendant appealed.

The cause as it now stands before the court, presents two principal questions ; one of fact, in relation to the value of certain property conveyed by the defendant to the plaintiff, for the purpose of securing the latter against losses, which he might sustain in consequence of debts due him by the former, and sums of money which he the plaintiff might be compelled to pay as surety for the defendant; another of law, viz : whether the appellee did not pay in his own wrong, the sum of money stipulated in favor of the marshal *338of the United States, for the State of Alabama, by the defendant, in a bond in which the plaintiff became his surety, the consideration of the obligation being illicit, according to the laws of the United States.

*338The whole amount owing by the appellant to the appellee, including the personal obligations of the latter, with claims for sums by the former as having been paid on the score of suretyship, is about nine thousand dollars, without interest. If interest were to be now added, at the rate of eight per cent, per annum, the rate of legal interest in the state of Alabama, the whole sum would probably exceed the most extravagant valuation of the real property conveyed to the plaintiff, as a surety against his responsibilities for the defen-1 , , , . . . . dant. But m order that this property may be made to compensate, under the plea in reconvention, the debts due to the plaintiff, its value at the time of conveyance must be taken ; . , J into consideration. The testimony on this part of the cause is variant and contradictory. The Verdict of the jury, to whom the case was submitted on the second trial, and the . * judgment of the court on the last, seem to fix the value of the property claimed in reconvention, at a price not more jj.ian 8Ufgcient to satisfy the direct claims of the' appellant against the appellee, and in this we are not prepared say there was error, considering the contradictory evidence °ffered on the subject.

It only remains to examine the second question in the case, which we have stated is one of law. The plaintiff, as already assumed, became surety for the defendant, in a bond given by the latter to the marshal of Alabama. The contract ought, probably, to have been avoided, on the ground of illegality in the consideration. Suit was how- , . & , . , . . , ... , . ,, ever, brought on this bond in a competent tribunal, in the State of Alabama, against the surety, who used all means of defence in his power, but in spite of this, he was compelled to r . , ‘ . pay the whole amount of the obligation, by a judgment of the court. In order to save his property from immediate sejzure or his person from arrest, under execution, he ’ 1 . . ,. made terms with the plaintiff in the case, by releasing errors, *339&c., and finally paid the full amount of the judgment rendered against him, as already stated.

We are of opinion, that by the release of errors, the surety in acting in this manner for his own safety, did nothing prejudicial to his principal, who might either have obtained a writ of error, or brought suit to annul the bond on account of illegality. The surety did all, which in our opinion he was bound to do, to avoid the payment of this debt, both in relation to himself, and the principal debtor.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.