Powell v. Smith , 8 Johns. 249 ( 1811 )

Per Curiam.

Two questions arc presented to the court. The one relates to the validity of the second plea, and the other respects the rule or measure of damages upon the facts disclosed at the trial.

1. The plea is clearly bad. The declaration not only charges the defendant with-promising to take up the note, which the plaintiff signed as surety, but also to indemnify and save, harmless the plaintiff from all cost and damage in consequence of his becoming surety in the note.It also states a special harm and damage by being sued1upon the note, and charged m execution. The fact of r • . . the plaintiff's discharge from imprisonment, as an insolvent debtor, was no answer to this charge, or compensation for this injury. He was certainly entitled to recover on the promise of indemnity.

2. The only serious question in the caséis, what ought to be the rule of damages. There was no proof at the trial of any promise to save harmless, and the plaintiff must recover, if at all, upon the simple fact of having signed a note as surety for the defendants, and of having been sued upon it, and charged in execution. The case of Chilton & Whiffin v. Cromwell (3 Wils. 13.) has been referred to, as somewhat analogous. The declaration in that case stated, that the plaintiff had accepted a bill drawn on him by a partner of the defendant, under a pror mise by the defendant.to take up the bill when due, and to save the plaintiff harmless; that the bill was not taken up, and the plaintiff was sued upon his acceptance, and was charged in execution when he brought the suit. It did not appear that he had paid the money, or any part of it, and the court of C. B. held that he was entitled to recover the amount of the judgment, and that being charged in execution was the same thing for him as payment of the debt and costs. The promise of indemnity was enough to support the action in that case, but there appears to be much difficulty in applying to this case, the position, that the being charged in execution was payment of the debt. It would not be true in its application here. The imprisonment of the surety on a ca. sa. is no satisfaction to the creditor for his debt, or discharge of the principal debtor. (Blumfield's case, 5 Co. 86. b. Peacock v. Jeffery, 1 Taunt. 426.) If the plaintiff has not, in fact, paid the debt, the defendant is still answerable to the payees of the note, for whatever sum remains diie thereon. Suppose a surety is taken on ca. sa. for a debt of 10,000 dollars, and discharged the next day, under the insolvent act, is he entitled to recover that whole sum of his prim cipal, without ever having paid a cent of it, and when the principal may be obliged to pay the sum also to the original creditor ? This would not be reasonable, and cannot be the true rule of law. The surety is entitled to recover as much of the debt as he has paid, and no more. The plaintiff did not, upon the trial, show any contract or promise of indemnity against trouble and harm. He showed nothing more than that he had become surety in a note for the defendant, and that having omitted to take it up when it fell due, he had been sued and imprisoned. This fact alone did not entitle him to recover. A surety, qua surety, cannot call upon his principal, at law, until he has actually paid the money. The law then raises the assumpsit, and the form of the action is an indebitatus assumpsit for the money paid, and not on a promise to indemnify. (Cowp. 525, 1 Term Rep, 599. 2 Term Rep. 100. 2 Esp. N. P. 528.) The court, in the case in Wilson, agree that there was ho debt due or owing from the principal to the surety, until he teas charged hi execution. And we cannot see how that additional circumstance should create the debt, as it was neither a payment to the creditor, nor a discharge to the principal debtor. The case of principal and surety in a note or obligation to a third person, has no analogy to that of a principal and bail in a suit at law; and the doctrine in Smith v. Rosecrantz, (6 Johns. Rep. 97.) is altogether inapplicable. The latter is a technical rule, founded on the nature of the recognisance of bail under which the taking of one is the discharge of the other. This is not so, as to the relation of principal and surety. They are equally debtors to the plaintiff; and it was a principle acknowledged as far back as the Roman law, (Inst. lib. 4. tit. 14. s. 4.) that a discharge of the debtor under a cessio bonorum, was no discharge of the surety.

As the plaintiff, then, in this case, did not show upon the ¿rial, the payment of any part of the debt, he was not entitled to recover, and judgment must be rendered for the defendant.

Judgment for the defendant.