4 Wend. 432 | N.Y. Sup. Ct. | 1830
By the Court,
The plaintiff was properly nonsuited. The evidence I think satisfactorily shews that the notés were made exclusively for the benefit of John Blanchard, and that Anthony Blanchard and Robertson, as well as the plaintiff, signed merely as sureties.
It appears from the testimony of Joseph Wells, that he originally applied to the plaintiff on the behalf of John Blanchard, to induce him to sign a note as surety, to enable Blanchard to get money at the Rutland bank. The witness saw the plaintiff and told him, John Blanchard wished to get
If Anthony Blanchard and Robertson were co-surities merely, with the plaintiff, then this action certainly cannot be maintained. They are individually, but not jointly liable for their respective proportions of the amount paid by the plaintiff. He must bring his action against each for his aliquot proportion. (Covell v. Edwards, 2 Bos. & Pull. 268.)
The indemnity exacted by the plaintiff from Mr. Russell, would not affect Ms right to recover in this action if the defendants had all been principals. Although he had collateral security, and might not have loaned Ms credit without it, still the money paid by Mm would have been paid in judgment of law'at the request and for the benefit of the defendants. The case of Toussaint v. Martinnant, (2 T. R. 100,) cited by the counsel for the defendant, does not apply; there the plaintiff, when he became bound as security with the defendant, took a bond from the defendant himself, conditioned for the payment of the debt to the plaintiff, for wMch he had become bound as surety with the defendant. Having been compelled to pay the debt, the plaintiff brought his action for money paid to Ms use against the defendant. The court
The plaintiff strictly, and in point of form, ought not to have been nonsuited, there being other defendants against whom he had obtained a default. But this course seems to have been adopted by consent of all parties upon the trial, and the plaintiff cannot now object to it.
Motion for new trial denied.