56 Vt. 324 | Vt. | 1883
The opinion of the court is delivered by
This cause was heard on a general and special demurrer to the defendant’s third plea. The special causes of demurrer have not been insisted upon in argument; ■ and the question presented for determination is, whether the facts alleged in that plea constitute a defence to the action.
The plea alleges that the parties signed the note upon which the payment was recovered against,tire plaintiff, and which he subsequently paid, as sureties for John D. Aldrich; that John D. and the parties, and George Jenkins, the payee of the note, were- at the time of its execution, and ever since have been, residents of this State; that before the service of the process upon the plaintiff upon which the judgment was obtained against him in New Hampshire, the right of recovery upon the note as against the principal and, sureties by the laws of this State was barred by the Statute of Limitations, and for that reason they had declined and refused to pay it; that the plaintiff, knowing that a recovery upon said note was by the laws of this State barred by the Statute of Limitations, and that the defendant had declined and refused to pay the same, went voluntarily and without the knowledge and consent of, and against the will, of the defendant, into New Hampshire, where the process was served upon Mm; that thereby he made himself
By the law of the State of New Hampshire, where the plaintiff was found when the process was served upon him, the Statute of Limitations was not available as a defence.
Hid the plaintiff by voluntarily going into New Hampshire and thus giving the payee of the note an opportunity to institute the proceedings which terminated in a judgment against him release his co-surety from his liability for contribution ? It will lie noticed that it is not alleged that the plaintiff went into New Hampshire with any fraudulent intent, or for the purpose of giving an opportunity to have the process served upon lfim. A voluntary payment of an obligation by a surety which he is not under a legal obligation to make, does not give a right of action against a co-surety for contribution. But where the payment is compulsory the rule is different; in such case the payment by one surety gives a right of action against co-sureties for contribution. And a payment is deemed in law to be compulsory when the party making it cannot legally resist it. The payment of a judgment while it is collectable comes within the definition of a compulsory payment.
The legal right of sureties as against each other is not governed by the lex loci contractus; neither is there any implied obligation that they shall reside or remain in any particular locality. The right to contribution among co-sureties is not. founded on the contract of suretyship, but is based on an equity arising from the relation of the co-sureties. The right of action for contribution accrues when one has paid more than his proportion of their liability. It is an equity which arises when the relation of co-sureties is entered into, and upon which a cause of action accrues, when one has paid more than his proportion of the debt for which they were bound. Burge Sur. 384; Theo. Pr. & S. 158; Camp v. Bostwick, 20 Ohio St. 337; Peaslee v. Breed, 10 N. H. 489; Boardman v. Paige, 11 N. H. 431; Sibley v. Mc Allister, 8 N. H. 389.
Sec. 976, R. L., so much relied upon by counsel for defendant,
The judgment overruling the demurrer is reversed, demurrer sustained, plea adjudged insufficient, and cause remanded.