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Other Prin Ciples


OTHER PRIN CIPLES. The surety may pay a part of the debt when due, or pay it in installments, and recover after each payment a like sum from the principal. (Davies v. Humphreys, 6 M. & W., 153.) As regards the principal's right to exemption or the claim of third parties to the principal's property, the surety's right to indemnity relates back to the time when,he signed the contract and became surety, and his equity against the principal's property will be protected from damage by the claims of subse quent creditors, (Barney v. Grover, 28 Vt., 391; Rice v. Southgate, 16 Gray, 142.) The surety's action against the principal is generally that of assunmpsit, and if there are two or more principals, unless stipulated to the contrary, the surety may sue all of them, or any one of them for indemnity. (Hulett v. Soullard, 26 Vt., 295; Babcock v. Hub bard, 2 Conn., 536.) Where one of several joint guarantors pays the debt he may maintain an action against the principal. (Lowry v. Lumberman's Bank, 2 Watts & Serg., zio.) A payment made by several co-sureties from their individual money, can not be recovered by them in a joint suit against the principal. (Sevier v. Roddie, 51 Mo., 580.) But if such payment is made from a joint fund, as where the sureties borrow the money on a joint note, they may join in the suit for indemnity. (Pearson v. Par ker, 3 N. H., 366.) A mere volunteer, who has become surety without the request of the principal express or implied, can not compel indemnity from the principal upon pay ment of the debt. (Carter v. Black, 4 Dev. & Bat., [N. C.], A surety who pays the debt of the principal may recover the same though the principal has been dis charged in bankruptcy or under an insolvent act, unless such act expressly includes a provision for the adjustment of claims of sureties liable at the time of the discharge. (Cake V. Lewis, 8 Pa. St., 493; Lipscomb v. Grace, 26 Ark., 231.) But a dis charge of the principal after the debt has been paid by the surety will bar the claim of the surety for indemnity. (Smith v. Kinney, 6 Neb., 447.) The surety may without paying the debt, and even before called upon to pay by the creditor, file a bill in equity praying that the principal be com pelled to pay the debt. (Phila. & Reading R. R. Co. v. Little, 4t N. J. Eq., 519.) And where the contract of surety with the principal expressly pro vides that the surety shall be saved harmless from liability as well as indemnified, he may maintain an action at law against the principal without paying the debt. (Belloni v. Freeborn, 63 N. Y., 383.) In equity the surety may foreclose a mortgage on the property of the principal before paying the debt from his own money. (Kramer v. Farmers' Mechanics Bank, 15 Ohio, 253.) The surety must take care that the principal is liable for the debt he pays, or he cannot recover indemnity. (Hollinsbee v. Ritchey, 49 Ind., 261.) The claim to indemnity being valid, the surety may set-off such claim against a demand which the administrator of the insolvent estate of the deceased principal may have against him. (Beaver v. Beaver, 23 Pa. St., 167.) And the surety may pur chase property of the principal sold on execution by reason of a joint judgment against him and the principal. (Carlos v. Ansley, 8 Ala., 900.) The claim of the surety for indemnity against the principal may be barred by the statute of limita tions. The statute is held generally to begin to run from the time of the payment of the debt by the surety and not from the time that the debt becomes due. (Thayer v. Daniels, 110 Mass., 345 ) But where the creditor has a judgment against the prin cipal, which is assigned to the surety on payment of the debt, the surety may recover indemnity for the payment of the judgment though the recovery on the original debt would have been barred by the statute of limitations. (Morrison v. Page, 9 Dana [Ky.], 428.)

principal, surety, debt, indemnity and payment