PHENIX INS. CO.
(UircuitOourt, E. D. NeW York.
GUARANTY OF COLLECTiClN-PROMlSE-CONSTRUCTION.
A promise" that if the plaintiff would endeavor to collect the amount of the loss described from the Grand Trunk Railway Company, they, the defendants, would pay the Fl\id claim if the Grand Trunk Railway Company did not do so," is, in legal effect, a guaranty of the collection of the debt.
Wingate d; Cullen, for plaintiff. Foster d; Thomson, defendant.
BENEDICT, D. J. The plaintiff, suing in his. own name as the assignee of a chose inaction, cannot maintain the suit except' upon the theory that the cause of action sued on is the .new promise ma(le to the plaintiff by the defendant set up in the cOlpplaint, .viz. : that if the plaintiff would endeavor to collect the amount of the. loss described from the Gralld Trunk Railway Company, they, the defendants, would pay the said claim if· the Gral;l..d T.runk Railway of ac.tion is, in legal a Company did not do so.: This, guaranty by the defendant of the collection of the debt der;lcribfld, and resort to a or some other legal pf;oceding for the enforcement of the debt is a cp.ndition precedent to a recovery from such a Taylor v. 8 Cow. 628,. No suit or other legal proReding against the Grand Trunk Railway is averred. The allegation .of the oomplaint. is that" the. plaintiff, duly made such endeavor, arid went to great trouble and incurred considerable disbursements in endeavoring to induce said Grand Trunk;RailwllY to pay sa.id This allegation is equivalent to saying that the plaintiff endeavored. to collect the debt by endeavoring to induce the Grand Trunk Railroad Company to pay the claim, and not otherwise. Upon the face of the complaint, therefore,compliance with the terms of thecontra.ct does not appear, and thElcwnplaipt must be held bad. '. There must he judgment for the defendant on thel1emurrer, with leave to the r laintiff to amend on payment of costs.
UNITED, STATES V. SPI1i:L.
UNI1'ED BTATES V. SPIEL,
(District Court, D. Minnesota.
August 15, 1881.)
OF LWl'rATIONS. State statutes of limitations do not run against claims of the United 8tates. 2. GEN. ST. MINN', c. 77, 1, AND c. 53, § 19-JoINT JUDGliENTS. By chapters 77, § 1, and 53, § 19, Gen. St. Minn., a joint judgment against the deceased and others, obtained during his life-time, may, upon his death, be prosecuted against his representative alone. '
,Demurrer to Complaint. H. F. Masterson, for demurrer-. W. W. Billson, U. 8. Att'y, cmttr,a. NELSON, D. J. This suit is brought upon a judgment obtained against David Rohrer, administrator of the estate of Henry Tilden, deceased, J. C. Ramsey, Benjamin F. Hoyt, Louis Roberts, Jame,s McBoal, D. F. Brawley, David L. Fuller, and B. W. Brunson, January 5, 1857. 'The administrator of J. C. Ramsey alone is now sued, and a demurrer is interposed by him to the complaint. The questions in the case raised on the demurrer are whether the action can be maintained against the representative of the deceased debtor alone; and, further, is the action barred by the statutes of Minnesota limiting the time when actions upon judgments can be brought tolO years? The judgment was rendered against all the parties above named, and in the complaint appears to be a joint one. In my opinion (1) the statute of limitations of 'the state of Minnesota does not run again'st the United States whether the claim rests in judglaw, on the death of Ramsey the ment or not; (2) by the suit upon the judgment could be brought only against the survivors. . By the statutes of Minnesota (seechapter 77, § 1, and chapter 53, § 19, Gen. St. Minn.) the estate of Ramsey is liable; and, although the judgment is joint, the liabilitJ' is the same as if tpe judgment had been against him alone. Again, the judgment against the administrator of Ramsey would be de bonis testatoris, while against the sur· viving joint it should be de bonis propriis. It would seem to follow,'then, that the action ,must be brought against the administrator of Ramsey separately, and he cannot be joined with the surviving obligors. It is unnecessary, however, to go to this extent to sustain' the in this action, for the liability of the estate is fixed by the statute. . Demurrer overruled, with leave to anl>wer in 20 days.