3 N.H. 270 | Superior Court of New Hampshire | 1825
The defence, upon which this defendant relies, is founded upon a very great misapprehension, in relation to the principles of law, by which the cause must be settled.
Whether a surety, who voluntarily pays the debt, after all remedy to recover it is barred by the statute of limitations, can maintain an action against the principal to recover the money thus paid, or against his co-surety for a contribution, is a question, which does not arise in this case, and need not be examined.
It is settled, that as soon as the debt becomes due by the terms of the contract, a surety may pay it, and at once have his remedy against his principal. 13 John. 58, Mauri vs. Heffernan.—4 ditto 461, Sluby vs. Champlin.—16 Mass. Rep. 41.—17 ditto 464, Batchelder vs. Fisk.
And it seems, that a surety, who thus pays, may have his remedy against his co-surety, without shewing an inability in the principal to pay. 2 B. & P. 268, Cowell vs. Edwards.—2 ditto 270.—2 Esp. N. P. C. 478, Turner vs. Davis.
In this case, when W. A. Kent, in 1816, paid the debt, he at once became entitled to an action against Wilson, to compel him to contribute, and might have maintained an action for that purpose at any time within six years after the payment. Cut it was not necessary, that Wilson, or his executor, should be compelled by suit to pay, in order to render the defendant liable to them.
When, therefore, the plaintiff, as executor, in 1820, paid to Kent one half of the sum, which the latter paid, the right of action in this case accrued ; and there is no pretence, that it is barred by the statute of limitations. An action is barred, not by a lapse of ten years, during which a negligent and ungrateful debtor, leaving all to the care of his sureties,, has heard nothing and known nothing of the debt, but by a lapse of six years after the right of action accrues.
Judgment on the verdict*