69 Ko.::G8t; .Bankv. Kent, 4: ::N, ]i;:-221;Perry v.Hodnett, 38 Ga. 1Q4q "Btown v. Rathburn,,10 Or. 15$. . .:The,a:llegamons thatCampbeWs·relation was that of a merp sUFetY; that eomplainant' had knowledge of such fact, and wHb such l\nowledge, for a valuable consideration; extended the principal creditol'l'stime for 'good defense as to Campbell's lia,bility, ·bOth on the note and mortgage,' and this defense is available to Campbell's grantee, or a I!lubsequent mortgagee of the mortgaged·premises. The' :oroSs bills present mere matters of defense. Such' is not theiroftleel: :Such abiIl.seeking·no discovery,and setting up no defense which might not as well ·h8.V'ebeen taken by answer, will be dismissedi'with costs. 2 Daniell;Oh; Pl'. 1552, note. The alleged agreements of Livirigstone to pay half of complainant's mortgage, and of Stratton to pay Lardner's mortgage, are not matters, of 'defense to thEFcomplainant'scomplaint. These agreewith the principal debtor. They cannot affect therightl!of the complainant. The exceptions to the answers are the deniulTers to the eross bills are sustained.
ESBERG-BACHMAN LEAF.,.TOBACCO CO. v. HElD.
(DistrIct Court, D. Ala.ska.
July 21, 1894.)
AGREEMENT TO PAY ANOTHER'S DEBT-SUFFICIENCY OF COlllPLAINT.
In an action on a c01).tract whereby defendant agreed to pay to plainof a third person for goods s<)ld such third person "whenandi as soon as the same should thereafter become due," executed at the ·time of the sale,:jlnd as a part of the ·same transaGtion, plaintitr either tPat he has exhausted his legal remedies against need such third person, or that he "is Insolvent..
Action at law by the Esberg-Bachman Leaf-Tobacco Company against JohnG. Heid Oli a written contract. Defendant demurred to the complaint. Demurrer overruled. & :aIackett and Lytton Taylor, for plaintiff. Johnson & Heid, for defendant. TRUITT, District Judge.. This is an action brought on a written of one T. Cohen for guaranty by, d,efendant tO,pay an goods, wares, and.. of the price and value of $427.79, sold and delivered by plaintiff to said Cohen, for which he agreed to .I>fl,y at ot four months from the 19th day .of Janw:try, 1892,-c-tlie date of the sale of said goods, wares, After a,Jlegingthe sale and delivery of the goods, and the promis¢'topay,and tbat the WhOle of the purchase price still remains duean(l wholly unpaid,the'eomplaint sets out the following to show",. . : . defendant's "lia:bilitv herein: '!::'''' ,'---',
"That (,llI.Jji. defendant, fmi a.nd. in consld1ration of said sale and delivery <>f sald gl)Qds, wares, and mefGhandise to T. Cohen at the times aforesaid, andasa part of the same transactiOn, promised and agreed, by his certain Instrument in writing. bearing date December. 15, 1891, that he would
LEAF-TOBACCO CO., v. HEID.
pay to plaintiff the said indebtedness of said T. Cohen when and as soon as the same sho'nld'thereafter become due, viz. on or about 19, 1892; that said defendant, although lq:lOwing full well that said T. Cohen had failed and neglected to pay said indebtedness, or any part thereof, when the same thereafter became due, and although often requested by plaintiff to pay such indebtedness of said T. Cohen, has failed and neglected and refused, and still fails, neglects, and refuses, to pay the same, or any part thereof."
The defendant has interposed a general demurrer as a defense. To sustain the demurre.r, it is urged that plaintiff must allege in the complaint that he has used due diligence to collect his demand from the principal debtor, and that he has exhausted all his legal reniedies against him without avail, or that he is 'insolvent and unable to pay the said indebtedness, or any part thereof. But, to charge the defendant under such a contract as is alleged in the complaint, the plaintiff is not required to allege or prove either that he has exhausted his legal remedies against the principal debtor, or his insolvency. The terms of the guaranty must always determine and fix the nature and extent of the guarantor's liability. In this case there is an absolute obligation for the payment of said indebtedness if Cohen failed to pay it as soon as due, not a guaranty that the money can be made out of him by due diligence. It is not a conditional obligation to be affected by contingencies, but a plain contract to pay the plaintiff for said goods, wares, and merchandise when payment therefor should become due. Rand. Com. Paper, § 850, makes this distinction very clear. "A guaranty," says this author, "may be absolute (that is, for the payment of the billor note), or conditional (that is, a guaranty that it is collectible by due diligence). One who guaranties payment becomes absolutely liable on any default of payment by,his principal." In the case of City of Memphis v. Brown, 20 Wall. 294, it is held that "upon guaranty of payment, aI1d not coItection merely, a suit may be commenced against the guarantor without any previous suit against the principal." Also, see Whiting v. Clark,17 Cal. 407, and Hanna v. Savage (Wash.) 35 Pac. 127. But in this case, under the contract alleged in the complaint, I am not certain that the defendant stands in the relation of a guarantor to the plaintiff. It is alleged that, as a part of the transaction of purchasing the said goods, wares, and merchandise, the defendant pro.mised he would pay to plaintiff the liiaid indebtedness "when and as soon as the same should thereafter become due." Now, it seems to me that the effect of this contract is such as to make defendant the absolute debtor of plaintiff, or at least a joint and several debtor with said Cohen, if considered in connection with the other allegation of the compIaint,-that, at the time of the purchase of the goods, Cohen promised to pay for them when payment therefor should become due,-in which case plaintiff might properly sue either one or both of them. But, whether defendant herein be considered as a guarantor or original debtor, the complaint shows a good cause of action. and the demurrer must be overruled.
In re OOLOORO. IJI. re OIENll'UlllGOa. In re BUSTAMANTE. (District Court, N. D. California. . Before MORROW, District JudSe, slttine as a Committing Magistrate. September 4, 1894.)
Nos. 11,095-11,099. By the treaty between the UJlitedStates and Salvador, they agree to deUtell tip persons who, .having been convicted or charged with certaln speciftedclimes committe4 within the jurisdiction of one of them, shall asylum or be found withintheterritolies of the other. Rev. St. U. s,' ·.5270 (Act Aug. 12, 1848), provides that, whenever there Is a treaty foreitrad1tion betweentlie UnitedStlites and any foreign government, any:jU8tlCe of the supreme court, circuit or district judge, etc., may, on complaint under oath charging any person found In any state, district, or having the jurisdiction of such foreign government, any erlme provided for by such treaty, issue his warrant for the apprehension of the person so charged, that he may be brought before him, to the end that the evidence oferlminality may be heard and consid;etc. Held, thatthe jurisdiction of such justice or judge, sitting as & comlI\ittln/r magistrate in a case in Which citizens of and fugitives from SalvlUlor are charged with extraditable. crimes, is in no way atrected by, all.dhew'lll not inquire into, the manner In which the persons so charged came;or were brought into the United States.
Applications for the extradition of Antonio Ezeta, Leon Bolanos, Jacinto 0010000, Juan Oienfuegos, and Florencio Bustamante, under the treaty between the United States of America and the republio of Salvador. Plea to jurisdiction. Plea overruled.
The defeJld8Jlts In the'above cases sought refuge on June 6,1894, on board the United States steamer Bennington, at the port of La Llbertad, Salvador. They requested an asylum untll the arrival of the steamer San BIas, on Its way to Panamli'. Antonio Ezeta, one of the defendants, was the commander In chief of the government forces, and the acting president ot the republic, by reason of the fI1ght of hiB brother, Don Oarlos Ezeta, who was the regularly constituted president. The otller defendants all occupied mllltary positions under Genera.l Antonio Ezeta. They had been unsuccessful In suppressing a revolution against the then existing government, and had retreated fl'om the Interior to the port of La Llbertad, where they arrived with but a few hundred men, and closely pursued by the fol'ces of the Insurgents. Their request fol' an asylum was granted, and also as to 12 others who accompanied them, but these latter persons are In no wise connected with these proceedings. Three days later the steamer San BIas arrived, at La Liberfad. when the commandCl' of the Bennington pl'oceeded to. make arrangements for the transter of the fugltlves on board.the vessel. The arrangements were Interrupted by commissioners, representing the successful revolutionary party, requestIng that they sbOttld have an opportunity to make a demand for the extradl, tlon of the fugitives on charges of murder, arson, robbery, and rape. The fugitives were accordingly detained on board the Bennington, and, in view of the disturbed condition of f!,trlllrs in Salvador, this concession was deemed by capt. Thomas a courtesy to the new government, of some consequence, In the favorable Intluence It would probably have.upon the authorities, In securing the safety of Ameriean citizens residing In that country. Upon the arrival of the nextvessei at La Llbertad, bound for Panama, the fugitives again requested permission to leave the Bennington, that they might take passage on the departing lJteamer; but the request was refused by Oapt. Thomas, under instructions from the secretary of the navy. The Bennington remained at La Libertad until July 25, 1894, during which time no extradition proceedIngs, other than a demand by the government of Salvador for the surrender of tJ}e fugitives. appears, to have,reached Capt: Tl!.omas. vessel then pro-