Opinion
(Spring Term, 1801.)
One surety cannot sue another for contribution at law.
This was an action on the case brought by Carrington against Carson, to compel him to pay to the plaintiff the sum of £ 86 10 11 1/2, being one-half of a sum which the plaintiff, as joint security in a bond with the defendant, had paid by execution for Andrew Burke, the principal.
Plea, Non assumpsit. The plaintiff had a verdict in the county court of Orange, from which the defendant appealed to Hillsborough Superior Court, and on the trial the plaintiff had a verdict for the above sum, subject to the opinion of the Court on the following question, viz.: "Is an action maintainable by one voluntary security in a bond against another voluntary security in the same bond, the first having been compelled by execution to pay the whole money due by the principal debtor?" If such action cannot be maintained, then judgment to be entered for the defendant.
The plaintiff and defendant were both securities for Burke in a bond executed to the trustees of the University — the plaintiff has been compelled to pay the amount of the bond by suit. The (411) question is, Can he compel the defendant to contribute the one-half which he has been compelled to pay? In this mode of action, 'tis true there is a moral obligation upon the defendant to pay to the plaintiff one-half of the sum the plaintiff was compelled to pay, in case the transaction has been a fair one. It is true that this action on the case has been much extended, and made to embrace many cases of equitable and moral obligation; but I recollect no case where it has been held that this action would lie in a case like the present one; which is a strong argument to prove that no such action can be sustained. Lyttleton, sec. 108; Doug., 580; Ld. Raym., 944. Many instances of the sort have occurred, and many instances may be given, where bills in equity have been brought to obtain relief. When this money was paid by the plaintiff, to whose use was it paid? To the principal's use — there is no doubt but that an action would lie against the principal. If it was paid to his use, could it be paid to the use of the defendant also? If so, it was paid to the use both of the defendant and the principal; of course, the plaintiff has an action against both of them jointly. Again, the bond was executed jointly and severally — they all undertook to pay, and each one of them took upon himself to pay the whole. I am of opinion judgment should be entered for the defendant.
I am of opinion that the plaintiff cannot recover in this action, his only relief being in equity, unless in the case of an express promise. The other Judges agreeing in opinion, judgment for defendant.
Cited: Powell v. Matthis, 26 N.C. 85.
NOTE. — See Robinson v. Kenon, 3 N.C. 181. But now by the Act of 1807 (1 Rev. Stat., ch. 113, sec. 2), one surety may have an action at law against his cosurety.
(412)