Brown v. Ray, 18 N.H. 102

Brown v. Ray

18 N.H. 102 | Superior Court of New Hampshire | 1846

Parker, C. J.

When a surety, before he is damnified, takes security from the principal, to indemnify himself against loss, a co-surety is entitled to share the benefit of the security thus taken.

The defendant, when he took the security, was surety *104upon several demands, upon which the plaintiff and other persons were severally co-sureties, and the security was taken generally to indemnify him on all the demands. The indemnity furnished by the security must, therefore, be apportioned among the several demands, as far as the sureties have an interest in it.

But the plaintiff had demands of his own against Hall; the security was taken for his demands as well as to indemnify him as surety; and he is entitled to apply the security in the first instance to the payment of his demands in full, they being present debts and the other but a contingent liability. None of the other sureties are interested with him thus far, and they are not entitled to set up an interest adverse to him, so far as he, without their interference, obtained a security upon the debts due to himself. They come in for a share of the benefit, so far as they are co-sureties, upon the ground that he has taken the security for indemnity against a liability common to all, and that it is one, therefore, in which they have a common interest. So far as he has a security in which they have not such interest, he is entitled to hold it; and having obtained the security without their assistance, for his own debts as well as the other demands, he is entitled to apply it first to his own debts. He took the whole for his own use and indemnity. To the extent of his debt he may rightfully hold it for his own use.

But the defendant is not entitled to hold anything, against the co-sureties, on account of demands against Hall, which he has purchased since the time of the transfer. The right of the co-sureties to participation in the benefit of the security attached when it was taken; and it cannot be divested by such subsequent purchase, unless it was part of the agreement at the time when the security was taken, that the defendant should purchase such demands, the security being taken for them also.

Whether a bill in equity would not have been the more *105appropriate remedy, we have not considered. It does not appear that the other co-sureties were not satisfied, and no objections of that character were taken at the trial.

The instructions were erroneous in regard to the right of the defendant to retain for demands due him at the time, for whieh reason there must be a

New trial.