17 Tenn. 57 | Tenn. | 1836
delivered the opinion of the court.
The Nashville Bank at the last term of this court, recovered a judgment against the plaintiff, who was indebted to it as. the security of the defendant’s intestate ; although the plaintiff then urged that he was not liable, because the adminis-tratrixhad by the judgmentof the court, been previously exonerated on the ground of the operation of the statute of limitations against executors and administrators. The question in .this case is, whether, having since paid the money to the bank, he can now recover it from the defendant ? And the courtis of opinion, that he can. To maintain tire «orrectness of this opinion, it is proper to enquire, first into the origin of the plaintiff’s cause of action, for the purpose of ascertaining, whether at the time defendant became administratrix he was a creditor within the meaning of the act referred to, and secondly, into the effect upon his rights, produced by the fact, that lapse of time had barred the claim of the bank against his pricipal.
As to the first point, it has been settled that the cause of action, although growing out of the relation of principal and surety created by the original contract, commences in point ol time with, and is founded upon the payment of the debt by the surety, or at the earliest, by a statute of our own, upon the rendition of a judgment against him. It is then, he becomes a creditor of his principal. It is true, that previously to this, and arising from the relation between them, he is not without some protective and preventive remedies against his principal. He may file a bill against his principal and the creditor. He may give the creditor notice to bring suit. But it seems to us that these remedies, are not founded upon, nor does their existence create the relation of creditor and debtor, within the meaning of the act of 1789, c. 23.
Secondly, what effect is produced by the fact, that time had
Judgment for plaintiff.