Sluby v. Champlin

Where the witnesses to a bond are absent out of the state, proof of ihvir handwriting is sufficient, without proving the hand-writing of the obligor. Where a bond, with sureties is given to the United States for duties, and A. is mentioned as the importer ; and B. the surety pays the bond, he may maintain an. action of assumpsit against A. though, in fact, a third person was the real owner of the goods. The possession, of the bond, and. the collector’s receipiswasheld. sufficient evidence of the payment by the surety. If the defendant on being arrested by the sheriff, promises to settle with the. X>laintiff,ifhewill give time for payment, it is a sufficient acknowledgment to prevent the operation of the statute of limitations»

THIS was an action for money paid, laid out and expended by the plaintiff, for the defendant, at bis request. The defendant pleaded non assumpsit, and the statute of limitations. The cause was tried at the last sittings in New-Tork. The defendant, on the 15th July, 1794, became bound as principal, to the United States, in the penal sum of 4,620 dollars, for securing certain duties, payable to the United States, on a cargo of salt, imported into Baltimore, amounting to 1,869 dollars and 15 cents, and the plaintiff, at his request, became his surety in the bond. The amount of the bond was paid by the plaintiff to the collector of Baltimore, who gave him the following receipt : “ Received at Baltimore, August 21st, 1795, from Nicholas Sluby, 1,859 dollars and 15 cents, it being for duty on salt imported by Oliver Champlin in the ship Argo, captain Schale, entered, and the duties bonded for by him, with Nicholas Sluby, as security to the said bond.” The defendant left Baltimore in August, or September, 1794, at which time Sluby was absent and his agent, in behalf of Sluby, applied to the defendant, before his departure, to indemnify him against the payment of the bond; and the defendant answered, that he expected to return before the bond became due, and would provide for the payment of It. The clerk of the plaintiff also testified, that the defendant was supercargo of the said ship Argo, in which the salt was imported ; that Daniel Parker is credited with the amount of sales of the salt, and other articles, in the books of Nicholas Sluby Co. and is debited by them with the bond given for the duties on the salt, and other articles, and that there is a balance due Sluby Ss? Co. on the said account of 2,056 dollars and 31 cents, and at the bottom of Daniel Parker's account, in the ledger of Sluby £s? Co. is a memorandum in the handwriting of the plaintiff, as follows : “ The balance of this account is due from either Daniel Parker, or Oliver Champlin, except what has been paid to Trumbull, Forbes y Co._ as per their accounts. Nicholas Sluby P It appeared that Sluby y Co. had charged to Daniel Parker, in their books, several sums of money advanced to the defendant; and that no part of the balance of the account had been received from Parker. The bond for the duties, contained the following recital and condition : “ whereas, Oliver Champlin has imported in the ship Argo, whereof John Schale is master, which said ship arrived, and made due entry in the port of Baltimore, on the 15th July, 1Z94, sundry goods, See. liable to pay duties, &c. Now the condition of the above obligation is such, that if the above bounden Oliver Champlin, Nicholas Sluby, and Stephen Casenave, &c. shall pay, &c. on or before the 16th August next, then,” fkc. There was but one witness to the bond, who was at the time a resident at Baltimore, but had been absent for a long time, in foreign parts, and when last heard of was at Leghorn. The hand-writing of this witness was proved, and also that it was usual at Baltimore^ to execute bonds of a similar nature, in the same way as the bond in question was executed, without affixing seals. The defendant’s counsel objected to the proof of the execution of the bond, as insufficient, but the objection was overruled. It appeared, that when the defendant was arrested, he did not deny the demand, but expressed his surprise that it had not been paid by Parker: and prormsed to meet the plaintiff, for the purpose of settling the accounts, if the plaintiff would give time for the payment. On this evidence, the defendant moved for a nonsuit, but the motion was overruled; and the judge charged the jury, that he did not think the evidence sufficient to warrant them in finding that the bonds were executed by the plaintiff, as security, on the exclusive credit of Parker ; and if not, the defendant was liable. He, however, left it with the jury to determine, whether the plaintiff had become surety, on the credit of Parker, or of the defendant, and to find accordingly. The jury found a verdict for the plaintiff, for 3,891 dollars and 4 cents ; being the amount, paid by the plaintiff, with interest from the time it was paid. A motion was made to set aside the verdict, and for a new trial.