Huffman v. Hulbert

13 Wend. 377

• Court: New York Supreme Court
• Decided: January 15, 1835
• Status: Published

Opinion

By the Court,

Nelson, J.

I perceive no objection to the charge of the circuit judge. Solvency, in the sense in which it is used, as applicable to the principle of law referred to by the judge, means something more than an ability to pay at the option of the debtor; it means that the debtor is in such a condition that the demand may be collected out of his property by due course of law. Any thing short of this would destroy the justice, and consequently the soundness of the rule which is founded upon the assumption that the debt is clearly collectable by suit. It is upon this ground only it can be defended. As the surety has the right to take up the note, and prosecute for hi- own benefit, he should be required to bring himself strictly and fully within the principle.. If insolvency means the inability of a man, from resources belonging to him and within his control, to pay his debts, and which is its !iteral interpretation, then the evidence was abundant, to show that t 'e •/ rincipal was insolvent at the time, the request :o sue was made. Ability to raise money upon credit for the paymant of debts, and salvency within the meaning of this rule, are very different things.

The question of extension of- time of payment, by a valid and binding agreement, was fairly submitted to the jury, and their verdict is conclusive, upon the facts of the case.

New trial denied.