Hare v. . Grant

Read®, J. Where a surety is sued with his principal, or' where he is sued alone and notifies his principal, so as to enable him to defend, or to furnish the surety with a de-fence, the recovery against' the surety is the measure of his damages against his principal. And in an action, as this is,, to recover of his principal, money paid to his use, the record of the recovery against the surety is conclusive evidence. It would be iniquitous for the principal to stand by and see an excessive recovery against his surety, which he alone could prevent, and then set up the defence when his surety sues him. Of course this principle would not apply where there was' fraud or collusion between the surety and creditor. And probably it would not apply where there had been negligence-on the part of the surety in using the defences within his-power, or which were furnished him by the principal. In this case no fault attaches to the surety. Lewis v. Fort, 75 N. C. 251. There is no error. PER Curiam. , Judgment affirmed.