Legal Opinion

Bradley v. Burwell

New York Supreme Court

Decided May 15, 1846PublishedCited by 20 opinions

Demurrer to two pleas interposed to the third and fourth counts of. the plaintiff’s declaration. The third count stated that on the 23d day of January, 1832, Thomas Gould the defendants’ testator, and the plaintiff, became sureties for A. C. H. Smith, who was appointed general guardian for M. E. Fuller, a minor, in a joint bond executed by the three, to Fuller, in the penalty of $8500, conditioned that Smith should faithfully perform his trust as guardian and render a just…

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Demurrer to two pleas interposed to the third and fourth counts of. the plaintiff’s declaration. The third count stated that on the 23d day of January, 1832, Thomas Gould the defendants’ testator, and the plaintiff, became sureties for A. C. H. Smith, who was appointed general guardian for M. E. Fuller, a minor, in a joint bond executed by the three, to Fuller, in the penalty of $8500, conditioned that Smith should faithfully perform his trust as guardian and render a just and true account when thereunto required: by means whereof, it is averred, the plaintiff and Gould became liable as…

1Opinion of the Court

By the Court, Jewett, J.

It is a general principle, that in case of a joint bond or obligation, if one of the obligors dies, his representatives are at law discharged from liability to the obligee, and the survivor alone can be sued. (1 Chitty’s Pl. 36.) But in equity the representatives of such deceased obligor are liable, unless the deceased was a mere surety; in such case even equity will not extend by implication the responsibility from that of a joint to a joint and several undertaking. (Weaver v. Shryock, 6 Serg. & Rawle, 262; Sumner v. Powell, 2 Meriv. R. 30; Harrison v. Mirge, 2 Wash.…

2Cases cited5 opinions

  1. Lawrence v. Trustees of Leake & Watts Orphan HouseNew York Supreme Court · 1845
  2. Miller v. MaxwellNew York Supreme Court · 1836
  3. Powell v. SmithNew York Supreme Court · 1811
  4. Weaver v. ShryockSupreme Court of Pennsylvania · 1820
  5. Carter v. Phelps'sNew York Supreme Court · 1811

3Cited by20 opinions

  1. Glasscock v. HamiltonTexas Supreme Court · 1884
  2. Barry v. . RansomNew York Court of Appeals · 1855
  3. Getty v. . BinsseNew York Court of Appeals · 1872
  4. Camp v. GrantSupreme Court of Connecticut · 1851
  5. Bowen v. SchulerIllinois Supreme Court · 1866

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