Derossett v. . Bradley ( 1868 )

Battle, J.

Neither of the objections urged against the right of the plaintiff to recover can avail the defendant. The parties were joint sureties of their principal, who was insolvent, and their agreement as to the manner in which the debt was to be paid, did not change their liability to each other upon the payment by one of them of the whole debt. Upon such payment, the Revised Code, ch. 110, s. 2, gave to the party paying, an action on the case against his co-surety for his rateable proportion of the sum paid, whether of principal, interest or cost. This disposes of the first and second, objections. The remaining one is equally untenable.

The plaintiff had no claim upon the defendant until he had. paid the debt of their principal in 1867. His cause of action did not arise, therefore, prior to the 1st day of May 1865, and hence the jurisdiction of the County Court was not taken, away by the Ordinance of the Convention of 1866, ch. 19.

Per Curiam. Judgment affirmed.