Foster v. Johnson

5 Vt. 60 | Vt. | 1833

Hutchinson, C. J.

The Bill of exceptions, in this case,, presents, among other things, the ordinary case of a surety paying money for an insolvent principal, and calling upon a co-surcty to contribute his proportion of the money paid. But the defendant’s counsel contend, that, there being more than two sureties, one has no remedy at law against another, but must resort to chancery. The case cited from the 16th of Com. law reports, to support this proposition, yields it no support. That was the case of a several bond, and not joint, nor joint and several. And the point decided was, that the breaking off the seal of one obligor, did not discharge the others.

The reason why one of three or more partners must seek an accounting in Chancery, does not exist hero. In that case, nothing can be more uncertain than the sum to which each is entitled, until the accounts are adjusted. Here the sum is as easily ascertained as in any common action of assumpsit. Indeed, it is a mere matter of computation. We have no doubt but that the action is well sustained by the facts stated in the exceptions. But an objection is raised to the competency of the witness by whom these facts were proved. The witness, Barlow, was one of the co-suretics who had given his separate bond to the jailor. We are unable to discover how his interest is. affected by any decision of this cause in favor of either par-J # * ty. The witness is liable for his fifth part, at all events.— And the defendant is liable for nothing more than his fifth parí. The verdict is for nothing more, excepting what is to be noticed about the officers fees. If the plaintiff’s recovering would relieve the witness from any portion of the liability, that would create an interest; but the counsel have pointed out no way, in which any such effect would be produced. Another point relates to the plaintiff’s having recovered one fifth part of the Sheriff’s fees which the plaintiff in part paid, by sale of his property on execution. It is said the other' debtors arc liable for the fees of their commitment, and ought not to share the expense of the sale of the plaintiff’s property. That part of the fees sometimes termed dollarage, or a percentage upon the amount of the execution, forms a joint debt against all the debtors; and probably, the officers would not be entitled to charge this twice on the same execution. But as the debt is not paid by a commitment, the key fees of the jailor cannot bo a proper charge against those not committed, unless immediate payment followed, which prevented further pursuit of those who were not committed. The fees paid by the plaintiff in this case, one fifth of which is included in the verdict, discharged all the debtors in the execution from liability to have the same cost ever arise against them on the same execution.' It is fair to consider this- payment of fees, like the payment of the judgement described in the execution, as made for the benefit of the whole-. More especially is it fair in this case, as the other debtors, after suffering themselves to be committed, procured this proceeding against the plaintiff on the same execution, as a mode of relief to themselves.

' The objection-, which remains to be considered relates' to the want of notice. And the case shows, that the plaintiff produced no evidence of his having called upon the defendant, and told him of this payment of the execution, and demanded a contribution. But he did produce evidence, that the four who were committed, were united in-procuring this payment from the plaintiff by compulsory measures. It would be little less than mockery for the plaintiff to have gone to the defendant, and given him notice of what he had himself been doing. Notice never need be given, or proved, of that which is equally in the knowledge of of both parties.

Smalley & Adam, for the defendant. Broxvn & Sheldon, for the plaintiff.

The judgment of the County Court is affirmed.