1 Handy 285 | Oh. Super. Ct., Cinci. | 1854
The Code, Section 500, provides that “a surety may maintain an action against his principal, to compel hinx to discharge the debt or liability for which the surety is bound, after the same has become due.” To this action the principal debtor would, I think, be a proper party. Had the defendant in this case set up, in the nature of a counterclaim, the equitable right to have the liability discharged by the principal debtors, making them parties thereto, I am not prepared to say, it might not have been sustained. The position in which the names stand on the paper, would, on principles of equity, constitute no obligation ; and if no unreasonable delay were interposed to the just right of the plaintiff, it is difficult to see, how he could object to receiving his money from the party, or the property of the party, justly liable for its payment.
There is, certainly, much more in the provisions of the Code, and it appears more reasonable, to allow such a remedy as the one I have suggested, than the summary proceeding, and that after judgment, which is now sought to be adopted. The Code expressly leaves it to the option of the plaintiff to join in the same action the parties severally liable on a bill or note, (§ 38;) the only penalty for unnecessarily bringing more than one action, is the payment of costs (§ 555.) An obligation to sue all the parties is nowhere imposed. It may be a right of the de
The defendant, if a surety, may now have a right of action to compel his principals to discharge the debt; that he may not be able to make it available in sufficient time is a misfortune, but it is one to be relieved against which, as to a plaintiff in the position in which the present plaintiff stands, would require a showing of circumstances which do not appear in this case. Whether such relief could in any case be had, I need not decide. I cannot grant it in the way now proposed, and the motion must be overruled.
