Whipple v. Briggs ( 1855 )

The opinion of the court was delivered by

Bennett, J.

We think this joint action is well brought. The jury have found that the old notes which the plaintiffs had signed with the defendant, as his surety, had been paid by the new notes which the plaintiffs gave, signed also by Gleason as their surety. It is a common principle that, if two joint sureties pay the note of their principal out of their separate funds, each one has only a right o! action for what he has paid; but if the payment is made out of their joint funds, they have a joint action against their principal. Li the case cited from the 5th of East, a part of the money was paid on the joint credit of the two sureties, and a part of the money had been raised upon their joint note, and it was held that a joint action was well brought. This seems to be well settled law. See 14 Pick. 283 ; 19 John. 213; 2 Met. 561.

The difficulty- arises on the other part of the plaintiffs’ case. The exceptions show that after the plaintiffs had paid the two notes, Jones received from the avails of real estate sold by him, and which had been conveyed to him by Briggs to indemnify him for liabilities incurred, the sum of fourteen hundred dollars; and that Jones still holds this money in his hands, except about the sum of eighty dollars; and it does not appear that Jones has paid at any time, for the use of Briggs, any moneys except the sum of seven hundred and fifty dollars to take up the notes of Briggs to the banks, and the eighty dollars paid to Mr. Briggs himself. As the case now stands, the plaintiffs cannot recover. When Jones took the security from Briggs, it enured also for the benefit of his co-surety, Whipple, in equity; and, if the sureties had paid the bank notes which they had signed for Briggs, out of their separate funds, this would not have affected Whipple’s right to have claimed a benefit, in common with Jones, in the security, in chancery. The case cited from the 8th Iredell 286, is in point; see also p. 56 in same volume. But in this case the plaintiffs show a joint right of action against Briggs for the seven hundred and fifty dollars, and in such a case a release by one would operate as a release by both, and a payment to one would be a payment to both. As Jones holds the security, upon the facts that now appear; for the common benefit of himself and Whipple, we think the defendant may insist upon an application of so much of the money raised from the sale of bis lands in the hands of Jones as will be necessary to discharge the joint right of action of the plaintiffs against him. This, com'mon justice requires, and Jones does not set up a claim to make an application of the money upon any other demands against Briggs.

If the plaintiffs had been entitled to recover at all, we do not see why the recovery should not have been for the whole, and not for a moiety of the sum paid, to which the county court limited the recovery.

Judgment reversed and case remanded.