16 N.H. 462 | Superior Court of New Hampshire | 1845
We are of opinion that Brooks the' co-surety is not entitled to the benefit of the mortgage. The case does not fall within the principle laid down in Low v. Swart, 5 N. H. 358, and other cases which give to a surety the benefit of a security held by -a co-surety. That can not be applied to mere promises to indemnify,
A promise to indemnify one surety can not be construed to be a promise to indemnify both ; and if a third person signs it as surety that will not enlarge its operation.
So a mortgage given to indemnify one surety can not be construed to be a mortgage given to indemnify two. The surety who takes it has nothing in hand to be applied to the discharge of the debt or which can be applied to that purpose. When he has paid he may use his indemnity. Until that he has nothing which he could assign to a co-surety for his indemnity. It is only upon being damnified that he has cause of action or any thing to assign. When damnified he may recover to that extent.
If he pays the whole debt he may claim to that amount, and thus indirectly exonerate his surety. He is not in such case obliged to resort to him. But he recovers because he is damnified. The promise is not to indemnify for damage to a third person, and he can not recover for that.
In this case moreover, before the defendant had any thing but a promise to indemnify himself, and a security for that promise, the loss had been adjusted between the co-sureties by each paying one half the demand for which they were liable? and after such adjustment one co-surety has no claim upon what may be received by another.
For these reasons Brooks can not claim the benefit of the mortgage, or Cushman hold in his behalf.
