52 N.C. 19 | N.C. | 1859
The action was for money paid by the plaintiff as the surety of the defendant, and the only question was whether the action could be sustained without showing that the plaintiff had given the defendant notice previously to the commencement of the suit.
By consent, a verdict was taken for the plaintiff, subject to the opinion of the court upon the point stated, with leave to set it aside and enter a nonsuit in case the opinion should be against the plaintiff.
Subsequently the court ordered a nonsuit, and the plaintiff appealed to the Supreme Court. The objection made to the recovery in this case, in the court below, was the want of notice to the principal before bringing the action.
This objection is not tenable. The general rule seems to be that where one person, being under an obligation to do so, pays money with another was primarily liable to pay, an action accrues immediately for money *16 paid. The principal debtor is bound to keep in mind his liabilities, and at the proper time to interpose between his surety and creditor for the protection of the former, and if he fails to do so, and the surety be required to pay, it is not necessary to the completion of his legal rights of complaint that he should hunt up his principal and make a demand.
We are not aware that this point has at any time been raised in our courts, but similar actions are very numerous, and the absence from every case of any such point is, of itself, high evidence of what the law (20) is. In actions by a surety against his principal, notice to principal before suit is nowhere recognized as an element of the plaintiff's case. The cases are collated in the American Ed. 1 Smith's Leading Cases, 228, and in Oldin v. Greenleaf,
On the trial below the court (in the absence of direct authority) was led into error from a supposed analogy between the relations of the parties and that which exists between cosureties. Such are the relations between cosureties that if one pay and make himself the creditor of the others, he ought, in common justice, to notify them of this change of relation before he sues for contribution; but such is not the case as between principal and surety.
PER CURIAM. Nonsuit set aside and judgment for plaintiff upon the verdict.
Cited: Norfleet v. Cromwell,
