Smith v. James

The bond on its face stipulates for the payment of the very sum for which the execution has been issued, after thirty days from its date. This period was reached long since, and had the plaintiff resorted to this writ without further delay, it is clear that in defect of proof of a special condition violated by his doing so, we could not, interfere. Now no evidence whatever has been offered by the defendants on the hearing of the present rule. On this plain ground the application must be denied.

But giving effect to the defendant’s own allegations, his situation is not more favourable. The plaintiff appears to have indorsed the notes without the slightest reciprocity or benefit of any description, and the precise purpose of the bond was to secure him for ibis gratuitous act, against the responsibility which he thus incurred. In Monell v. Smith and Jenkins, 5 Cowen 441, it was held, that, “ where one becomes surety for another for a certain sum or sums of money, and takes a bond and warrant from his principal in the usual form, for a sum or sums corresponding in amount, or a bond *164and warrant conditioned ¡o pay the specific sum or sums to the creditor, and there is a partial or total default of payment by his principal, even though the whole money be not due, he may issue execution for the whole; and this whether he has made payment or not”

Rule discharged.