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A surety who pays a note which is due and demandable from the principal promisor, although he pays it without suit, or com pulsion, or even demand from the holder, has an immediate claim upon the principal debtor for indemnity.(t) And it seems to be quite immaterial in what way the surety extinguishes the creditor's claim.(u) If the joint and several note of co-sureties is accepted by the creditor as payment of the original note, they may recover of the principal in a joint action, such a case being an exception to the general rule, that each must sue for the amount paid by him. The exception is placed upon the ground that the payment was a joint act, creating a joint interest.(v)

As to the costs which a surety may recover, it seems that he may recover costs of his principal, after a suit against the surety by the holder,(w) unless his defence were frivolous, unnecessary, or against the reasonable and honest instructions of his principal.(x) This right of the surety to indemnity, springing from

cited in McCollum v. Hinckley, 9 Vt. 143, 147. See Mactaggart v. Watson, 3 Clark & F. 525.

(t) Mims v. McDowell, Purssord, 8 M. & W. 538.

Ga 182. See Odlin v. Greenleaf, 3 N. H. 270; Pitt v.

(u) Hulett v. Soullard, 26 Vt. 295; Bonney v. Seely, 2 Wend 481. He may recover on a count for money had and received, although he paid in notes, if they were received as payment Willie v. Green, 2 N. H. 333. Or on a count for money laid out and expended. Pearson v. Parker, 3 N. H. 366. See Hommell v. Gamewell, 5 Blackf. 5. Where the administrator of the principal had successfully defended a suit on the note against him, and the holder afterwards obtained a judgment by default against the surety in the same court; it not appearing that either party knew of the other suit, or that the surety was privy to the administrator's defence; it was held, that the surety was not precluded from his right to indemnity from the estate of the principal. Stinson v. Brennan. Cheves, 15. Where the administratrix of a surety, having been sued by the holder of the note while it was still valid against the principal, but after the claim against the surety's estate was barred by the statute of limitations, paid the claim under an award; it was held that she could maintain a claim for indemnity. Shaw v. Loud, 12 Mass. 447. Where the surety, after the discharge in insolvency of the principal, being then first called on, paid the note and sued the principal, he was allowed to recover. Powell Eason, 1 Moore & S. 68.

(r) Stewart v. Vaughan, Rice, 33. See Pearson v. Parker, 3 N. H. 366; Appleton v. Bascom, 3 Met. 169.

(w) See Cleveland v. Covington, 3 Strob. 184; Rice v. Rice, 14 B. Mon. 417 Riddle v. Bowman, 7 Foster, 236.

(x) Beckley v. Munson, 22 Conn. 299; Cleveland v. Covington, supra. See Roach 1. Thompson, 4 Car. P. 194. The surety may recover costs incurred in an action against the principal and surety jointly. Apgar v. Hiler, 4 N. J. 812. It seems that he may recover interest on the amount paid. See Petre v. Duncombe, 1 Eng. L. & Eq. 320; Ilsley v. Jewett, 2 Met. 168. But, in general, he can recover only the

the equitable obligation of the principal to repay the surety, exists wherever the principal's assent to the suretyship may be reasonably inferred, or presumed, and only there; (y) and then it relates back to the time of the original contract of suretyship, as against all subsequent equities.(z)

A surety has, however, no claim against the principal upon which he can bring an action, until the note on which he is surety is due. His contingent liability may, however, be a sufficient consideration for a promissory note from the principal, upon which he may commence a suit, even before the original note is due. (a) As a general rule, whatever discharges the principal discharges the surety. (b) But where one had signed a joint and several note with a married woman, as surety, it was held that her successful plea of coverture was no defence to the surety.(c) Nor will this rule apply to the many cases in which a surety is required, for the very reason that the principal may have a defence which will defeat the claim against him. As in the instance just mentioned, where a wife's note is strengthened by a surety, so an infant's note may have a surety who will be held, although the infant make successfully the defence of infancy.(d) And we should say that, if a corporation made a note which they had no legal power to make, sureties on that note would be held. And this might be true, even if the corporation were prohibited by their charter, or by some general statute, from issuing such a note. If, however, the issuing of the note were not only prohibited, but made a legal offence, with a penalty

amount paid. Bonney v. Seely, 2 Wend. 481. Where one of the principals died, it was held that the surety could recover the amount paid of the survivor, deducting the proceeds of whatever collateral security he might have received. Riddle v. Bow man, 7 Foster, 236.

(y) Powers v. Nash, 37 Maine, 322; Norton v. Coons, 3 Denio, 130.

(z) Barney v. Grover, 28 Vt. 391. See Howe v. Ward, 4 Greenl. 195; Thompson v. Thompson, 19 Maine, 244; Carlisle v. Rich, 8 N. H. 44; Choteau v. Jones, 11 Ill. 300.

(a) See Swift v. Crocker, 21 Pick. 241; Dedman v. Williams, 1 Scam. 154. It has been said that a surety may have relief in equity as soon as he is endangered. Taylor v. Heriot, 4 Desaus. 227; McKenna v. George, 2 Rich. Eq. 15.

(b) 1 Parsons on Cont. 494; Theobald on Principal and Surety, 3. See Lewis v. Jones, 4 B. & C. 506, 515, note a.

(c) Smyley v. Head, 2 Rich. 590.

nerat v. Goldsmith, 6 Ga. 14.

(d) Conn v. Coburn, 7 N. H. 368.

See also Maggs v. Ames, 4 Bing. 470, and Con

See Kimball v. Newell, 7 Hill, 116

attached, the whole paper, with all its names, might then be deemed void. The mere fact that the surety cannot, in any such case, if he pays the note, have an enforceable claim for what he pays against the principal, defeats the holder's claim against the surety.

Payment of the whole amount will of course discharge the surety; but payment of a part, whether by principal or by surety, will not discharge the surety. For the surety is bound equally with the principal for the payment of the whole; and as payment of a part will not discharge the principal, so it will not discharge the surety.(e) Nor will an offer of time which is not accepted. (ƒ) Nor will the taking of a collateral security by the creditor from the principal debtor; for this can only help the surety, who is entitled, on his payment, to the benefit of all such security.(g)

(e) See Fitch v. Sutton, 5 East, 230; Beaumont ». Greathead, 2 C. B. 494; Cotton . Godwin, 7 M. & W. 147; Hesketh v. Fawcett, 11 id. 356; Shaw, C. J., Lincoln v. Bassett, 23 Pick. 154; Smith v. Bartholomew, 1 Mer. 276; Wheeler v. Wheeler, 11 Vt. 60; Bailey v. Day, 26 Maine, 88; McAllester v. Sprague, 34 id 296. Payment of a part, by a third party, discharges the debtor. Welby v. Drake, 1 Car. & P. 557 ; Brooks v. White, 2 Met. 283. If the holder has commenced a suit against the prin cipal, and the surety tenders the amount due, he must also tender indemnity against costs. Hampshire Bank v. Billings, 17 Pick. 87. Part payment before the debt is due is a good consideration. Wells, J, Lee v. Oppenheimer, 32 Maine, 253; Brooks v. White, 2 Met. 283.

(f) See Hewet v. Goodrick, 2 Car. & P. 468; Badnall v. Samuel, 3 Price, 521 ; supra, p. 239, note x.

(g) Twopenny v. Young, 3 B. & C. 208. See Burke v Cruger, 8 Texas, 66, 11 id. 694; U. S. v. Hodge, 6 How. 279; Stevenson v. Austin, 3 Met. 474; Norton v. Soule, 2 Greenl. 341; Wade v. Staunton, 5 How. Miss. 631; Pring v. Clarkson, 1 B & C. 14. Where a party holds two notes against another, one of which is signed by a surety, recovery of the full amount of the other note will not affect his claim on the surety. Dalton v. Woburn, 24 Pick. 257. In this last case it was held, that if the creditor recovers judgment on several notes, and the surety on one pays the note in full, and afterwards the creditor receives from the principal the whole amount of the judgment on all the notes, the surety cannot recover back any portion of the money paid by him. In Lincoln v. Bassett, 23 Pick. 154, the principal made an assignment to the creditor, for the benefit of all his creditors. The creditor received a dividend during the pendency of a suit by him against a surety. It was held that the suit was not barred by the receipt of the dividend, but that the dividend was to be deducted in estimating the damages. Shaw, C. J. said: "The giving of an assignment or other collateral security by the principal is no bar to an action against the surety, unless there be some stipulation to that effect on the part of the creditor. Years may elapse after such an assignment before any money will be realized from the assigned property; in the mean time the obligation is to pay money immediately. Were the surety thus to pay, it might well be held in equity that the creditor should stand as trustee for him for the assigned property. The most favorable view to be taken for the defendant is, that, the

But one surety, on payment of the debt, cannot claim the benefit of security given by a co-surety.(h) And if a note be given for the old one, even this may be deemed, if so intended, only as collateral security.(i)

If a surety pays money to the creditor under a mistake of facts, supposing them such as would make him liable, when in truth they are not, he may recover the money back from the creditor.(j) But if he had knowledge of the facts, and his mistake is one of law, he has no such right.(k) The declaration of a surety on a joint note, the principal being insolvent, that he intended to pay the amount, and wished to know how much interest was due, in reply to a proposal by the holder that he should sign a new joint and several note for the amount, does not change the liability of the surety from joint to several, either at law or in equity.(1) It has been held that a judgment against principal and surety merges the relations of the parties, so that a defence growing out of the relations existing before the judgment is not available at law afterwards.(m) But such a defence is admitted in equity.(n) It has however been said, that whatever would be a defence to the surety in equity, is a defence in law. (o) A surety, whether this word be attached to his name or not, is bound to any holder in like manner as a principal promisor is held. Thus, if a note be signed A and B, and against B's name is the word surety, B may be sued jointly with A, or alone if the note be joint and several, in the same way as if the word surety was not there.

creditor being himself the assignee, when the assigned property is reduced to money, it operates by way of payment pro tanto."

(h) Bowditch v. Green, 3 Met. 360.

(i) See Canfield v. Ives, 18 Pick. 253.

(j) Garland v Salem Bank, 9 Mass. 408.

(k) Bean v. Jones, 8 N. H. 149; Stevens v. Lynch, 12 East, 38.

(1) Jones v. Beach, 2 DeG. M. & G. 886. (m) Marshall v. Aiken, 25 Vt. 328; Herrick Carpenter . King, 9 Met. 511; Gibson, C. J.,

& R. 452; Rice v. Morton, 19 Misso. 263.

Orange Co. Bank, 27 id. 584. Centra,
Commonwealth v. Vanderslice, 8 S.

(») See Storms v. Thorn, 3 Barb. 314; Curan v. Colbert, 3 Ga. 239.

(0) Mariner's Bank v. Abbott, 28 Maine, 280; Springer v. Toothaker, 43 id. 381; Varnum. Milford, 2 McLean, 74. See Rees v. Berrington, 2 Ves. Jr. 540; Samuell v. Howarth, 3 Meriv. 272; People v. Jansen, 7 Johns. 332; Baker v. Briggs, Pick. 122.

Aolim 24 any or al

a

SECTION, HI,

hable b

OF JOINT MAKERS, AND OF JOINT AND SEVERAL MAKERS.

Two or more persons may sign a note jointly, as all copartners do, and if it begin "We promise," all who sign it are considered as signing it only jointly.(p) It is then a joint note, and can be sued only against all; and they are in general joint debtors, and come under the common rule of law in relation to joint debtors. And it has been held that the note is joint, although one of the makers signs as principal, and the other as surety.(q) The most important of these rules of law which relate to joint debtors arises from the necessity of suing all. (r) Hence, if the plaintiff has released one of the joint debtors, he can maintain no action against the other.(s) And the reason

(p) Mayor v. Ripley, 5 La. 120. See Palmer v. Stephens, 1 Denio, 471; Yorks v. Peck, 14 Barb. 644; Shep. Touch. 375.

(q) Hunt v. Adams, 5 Mass. 358, 6 id 519, 7 id. 518; Palmer v. Grant, 4 Conn. 389; Rawstone v. Parr, 3 Russ. 539, reversing same case, id. 424. A note beginning "I promise," signed by one partifer for his co-partners, as "A, for A, B, & C," is the joint note of the firm, not the several note of A, the partner who signed. Ex parte Buckley, 14 M. & W. 469, overruling Hall v. Smith, 1 B. & C. 407; In the matter of Clarke, 1 De Gex, 153; Galway v. Matthew, 1 Camp. 403; Doty v. Bates, 11 Johns. 544. See supra.

(r) Mayor v. Ripley, 5 La. 120; Bright v. Hand, 1 Harrison, 273. See Robertson v. Smith, 18 Johns. 459. In Bovill v. Wood, 2 Maule & S. 23, the plaintiff omitted to join one of the promisors who had obtained his discharge in insolvency. Lord Ellenborough said: "The defendants have a right to require that their co-debtor should be joined with them, and the plaintiffs cannot so shape their case as to strip them of that right, or of the benefit, whatever that may be, of having his discharge stated on the record. The plaintiffs are not at liberty to anticipate in the first instance what may ultimately, perhaps, be a discharge. The practice has ever been to join all the contracting parties to the record; and there is this advantage attending the practice, that it gives the party who is joined notice at the time, and also enables him at any future time to plead judgment recovered on the joint debt, without the help of any averment; and it likewise advances the other defendants one step in the proof necessary in an action by them for contribution." See Hawkins v. Ramsbottom, 6 Taunt. 179.

(s) Tuckerman v. Newhall, 17 Mass. 581. In this case the plaintiffs covenanted with one promisor that they "will forever release," &c., it was held that this must operate as a present release, and the co-promisor was discharged. See also Brooks v. Stuart, 9 A. & E 854, 1 Per. & D. 615; Cheetham v. Ward, 1 B. & P. 630; Myrick v Dame, 9 Cush. 248; Wiggin v. Tudor, 23 Pick. 434; Kirby v. Taylor, 6 Johns. Ch. 242; De Zeng o. Bailey, 9 Wend. 336; Taylor v. Gallaud, 3 Iowa, 17; Yates v. Donaldson, 5 Md 389; Bozeman v. State Bank, 2 Eng. 328; U. S. v. Thompson, Gilpin, 614. The rule is the same at equity as in law. Willings v. Consequa, Pet. C. C. 301.

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