Abbey v. Van Campen

Mississippi Chancery Courts

Abbey v. Van Campen

1 Free. Ch. 273

CourtMississippi Chancery Courts

DecidedJuly 1, 1844

StatusPublished

Cited by2 cases

This text of 1 Free. Ch. 273 (Abbey v. Van Campen) is published on Counsel Stack Legal Research, covering Mississippi Chancery Courts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Abbey v. Van Campen, 1 Free. Ch. 273 (Mich. Super. Ct. 1844).

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Opinion

The Chancellor.

This case was submitted on a motion to dissolve the injunction therein. The answer does not deny the agreement upon which I conceive the equity of the bill rests.

"Here, then, is an express agreement, by which Abbey was at liberty to withhold the payment of the note for one thousand dob lars, upon which he is sued, until Dickinson should release him from his liability as surety on notes made by Dickinson and indorsed for his accommodation by Abbey. This is certainly such an agreement between principal and surety as a court of equity would enforce for the protection of the latter. The allegation of the bill on this subject is not denied, and therefore stands admitted, on a mere motion to dissolve.

I entertain no doubt, however, that Abbey would, upon well considered principles of equity, have been entitled to the relief which he asks, even independent of the agreement set up by the bill, if the suit had been brought by Dickinson, in his life time, against him. A court, of equity would not permit a plaintiff at law to enforce against the defendant the collection of a debt, when the defendant stood as surety for the plaintiff to an amount greater than that sued for, unless the plaintiff would fully indemnify the defendant against his liability as his surety, and. especially if the plaintiff were shown to be insolvent. It would be rank injustice to permit a principal to collect a debt from his surety, and at the [275]*275same time leave his surety to pay a debt for him, without the most distant hope of reimbursement.

A surety has, in respect of his liability, the rights of a creditor, as against His principal; and, upon the insolvency of the principal debtor, he may retain any funds belonging to such debtor, by way of indemnity against his liability; otherwise a surety in such a case would be wholly without remedy, when the plainest principles of justice are in his favor. The cases of Williams, Adm’r. v. Helm et al. 1 Dev. Eq. R. 151, and Battle v. Hart, 2 Dev. Eq. R. 31, are fully in support of this view of the case.

The motion to dissolve the injunction must be overruled.

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The Chancellor.

This case was submitted on a motion to dissolve the injunction therein. The answer does not deny the agreement upon which I conceive the equity of the bill rests.

"Here, then, is an express agreement, by which Abbey was at liberty to withhold the payment of the note for one thousand dob lars, upon which he is sued, until Dickinson should release him from his liability as surety on notes made by Dickinson and indorsed for his accommodation by Abbey. This is certainly such an agreement between principal and surety as a court of equity would enforce for the protection of the latter. The allegation of the bill on this subject is not denied, and therefore stands admitted, on a mere motion to dissolve.

I entertain no doubt, however, that Abbey would, upon well considered principles of equity, have been entitled to the relief which he asks, even independent of the agreement set up by the bill, if the suit had been brought by Dickinson, in his life time, against him. A court, of equity would not permit a plaintiff at law to enforce against the defendant the collection of a debt, when the defendant stood as surety for the plaintiff to an amount greater than that sued for, unless the plaintiff would fully indemnify the defendant against his liability as his surety, and. especially if the plaintiff were shown to be insolvent. It would be rank injustice to permit a principal to collect a debt from his surety, and at the [275]*275same time leave his surety to pay a debt for him, without the most distant hope of reimbursement.

A surety has, in respect of his liability, the rights of a creditor, as against His principal; and, upon the insolvency of the principal debtor, he may retain any funds belonging to such debtor, by way of indemnity against his liability; otherwise a surety in such a case would be wholly without remedy, when the plainest principles of justice are in his favor. The cases of Williams, Adm’r. v. Helm et al. 1 Dev. Eq. R. 151, and Battle v. Hart, 2 Dev. Eq. R. 31, are fully in support of this view of the case.

The motion to dissolve the injunction must be overruled.

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Bluebook (online)

1 Free. Ch. 273, Counsel Stack Legal Research, https://law.counselstack.com/opinion/abbey-v-van-campen-misschanceryct-1844.

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