Taylor v. . Miller , 62 N.C. 365 ( 1868 )

The complainants were sureties upon a bond due by Thomas C. Miller, the testator of the defendant Annie, as principal, and suit was pending against them thereupon. The other allegations, in the bill were similar to those contained in the case of Moore v. Miller, which immediately precedes this.

The prayer was for exoneration, and was in other respects like that in the former case. This case differs from Moore v. Miller, ante, 359, only in this: The plaintiffs as sureties seek for exoneration without being compelled beforehand to pay up the debt. That equity in favor of sureties is settled, but it is merely collateral, and can not be allowed the effect of putting them in a better condition than if they had paid the debt. Had they done so, by force of the Act of 1829, they would have been entitled to the dignity of bond creditors and no more. So they are to stand on the same footing as any other bond creditor, and can claim no superior equity simply from the fact that they have not been compelled to discharge their original liability, and as we have just seen that Mr. Moore, a bond creditor, can not maintain a bill, it follows that they can not.

Demurrer allowed.

PER CURIAM. Bill dismissed.