Pritchard v. Mitchell.

Connor, J., after stating the facts: His Honor properly allowed the plaintiff, C. W. Mitchell, to submit to a nonsuit. The complaint did not set out any cause of action in which he was interested or entitling him to any relief; nor did he ask for any judgment. It seemed to be assumed that he endorsed the note. It does so appear from the complaint, the *56 allegation being that be assigned it. Tbis, however, is not material, as in no aspect was be entitled to any relief. It is simply a case of misjoinder of parties plaintiff, and upon demurrer or motion may be corrected by taxing the plaintiff witb sncb costs as are incurred by the misjoinder. Clark’s Code, section 239, sub-section 4 and cases cited. the complaint stated no cause of action in favor of O. W. Mtchell; therefore it was only necessary 'to move the court for judgment against him for costs. This result was anticipated by him and be was permitted to take a nonsuit. There was no cause of action to be nol prossed. His retirement from the record did not necessitate any change in the complaint. . the case is in this respect distinguished from Mitchell v. Mitchell, 96 N. C., 14, and Cromartie v. Parker, 121 N. C., 199. It is like Green v. Green, 69 N. C., 294, in which Pearson, G. J., says: “As to the unnecessary parties plaintiff it is their own concern to be made liable for costs.” the serious question presented by the demurrer is whether the Law of 1893, chapter 453, section 1, which enacts: “That upon the execution of any voluntary deed of trust or deed of assignment for the benefit of creditors, all debts of the maker thereof shall become due and payable at once,” applies to the sureties upon a note of the assignor. , It is an elementary principle that every contract is made witb reference to the existing law; hence the principal debtor at the time be executed the note promising to pay the sum named on January 1, 1906, made it a part of bis contract that if be made an assignment for the benefit of bis creditors, the debt would become due and payable at once. It is equally well settled that the contract of suretyship is measured by, and is coextensive with the liability of the principal. the law as held by tbis court is stated by Ruffin, C. J., in Shaw v. McFarlane, 23 N. C., 216: “If two persons are bound by a bond or a judgment for the payment of a sum of money, the one is liable to the creditor in the same manner and to the same ex *57 tent as tbe other, although as between themselves, they stand as principal and surety. In respect to the creditor, they are joint debtors, fixed with the same obligation.” In this respect the contract of the surety is distinguished from that of a guarantor. 27 Am. & Eng. Enc., (2nd Ed.), 432; 1 Brandt on Suretyship, 2. It would seem therefore that, when by the terms of the contract interpreted in the light of the statute, the principal is bound in the event of his making an assignment, to pay at once or accelerate the maturity of the debt, the surety is hound in like manner. This does not involve any change in the contract, but incorporates the provision of the statute into it. We have examined the cases cited by the defendant’s counsel, and we do not think they conflict with the conclusion which we have reached. The judgment must be Affirmed.