3 Binn. 520 (Pa. 1811), Berks County Com'rs v. Ross

• Citation: 3 Binn. 520, 5 Am.Dec. 383
• Opinion Judge: TILGHMAN C. J.
• Party Name: The COMMISSIONERS of Berks County v. Ross and others.
• Attorney: Hopkins for the plaintiffs. Bowie for the defendants.
• Judge Panel: YEATES J.
• Case Date: May 25, 1811

Page 520

3 Binn. 520 (Pa. 1811)

5 Am.Dec. 383

The COMMISSIONERS of Berks County

v.

Ross and others.

Supreme Court of Pennsylvania.

May 25, 1811

If the obligee undertakes to discharge the principal, or in any considerable degree to lessen his responsibility, without consulting the surety, the surety is discharged; but the mere acceptance of a common appearance in a suit by the obligee against the principal, in consequence of which the latter executed an assignment to secure part of the debt, has no effect upon the obligation of the surety, although it furnished the principal with an opportunity to leave the state.

There is no rule of law against granting a new trial after two concurring verdicts, nor will the court hesitate to do it, if the verdicts are against law.

The principle which has governed courts in refusing the plaintiff a new trial, where his demand has been a hard one, does not in any degree apply to actions against sureties for the default of a principal. Although a surety may be distressed by the demand, yet it is not in point of law a hard one.

THIS was an appeal from the decision of Judge Brackenridge at a Circuit Court for York county in May 1809.

The action was debt upon a bond given by the defendants to the plaintiffs, to secure the performance of a contract made by a certain Obadiah Osburn with the plaintiffs, to build a bridge over the Schuylkill at Reading. Osburn did not comply with his contract; and in June 1804, the commissioners sued him in covenant, and demanded bail in 5000 pounds; but they afterwards without consulting or giving notice to his sureties, accepted his appearance, on his assigning to them all his property on account of the moneys which they had advanced him. After being discharged, he left the state. The commissioners sold the property, the proceeds of which reduced their demand to about 8000 dollars, for which the present action was brought. There was no dispute about facts, and the charge of the court was in favour of the plaintiffs; but the jury, as another jury had done before, found for the defendants, and judge Brackenridge, although the verdict he said was decidedly against his opinion, overruled a motion for a new trial, that it might be heard in bank upon appeal.

Hopkins for the plaintiffs. The verdict was most clearly against law, evidence, and the charge of the court; in fact so clearly, that the only question in the case is, whether the court will grant a new trial after two concurring verdicts against law. If they will not, there is an end to all certainty in the law, and to all stability in the possession of property. The prejudices, or the honest but erroneous feelings of a jury, accompanied with sufficient obstinacy, will triumph over the authority of the court. As to the facts in this case there was no dispute. The execution of the bond by the defendants, the nonperformance of the contract by Osburn, and the damage to the plaintiffs in consequence of their advances, were indisputable; the only point in the case was a point of law, arising out of the discharge of Osburn upon a common appearance, instead of taking bail; and as to this there could be no doubt that it was with the plaintiffs. They were not bound to consult the defendants as to the discharge of Osburn from arrest, because they were not bound to arrest him at all. How they should sue, and whether they should sue or not, was a question for themselves only. But suppose it was not, the inquiry as to the surety always is, whether in equity he is intitled to relief, in consequence of an injury he has received by the conduct of the obligee to the principal; and it was plain here that the sureties were benefited by the discharge of Osburn, as the commissioners in consequence of it got an assignment of all his property, which has been sold, and credited to the defendants. The jury could have had no other reason for their verdict, but that the county was on one side, and individuals on the other.

Bowie for the defendants. The commissioners are intitled...