Barney v. Grover

The opinion of the court was delivered,- at the circuit session in June, by Fedeield, Cti. J. This is an action of book account, prosecuted for the benefit of an assignee of the account. At the time the account was assigned, there was due upon it about $ 100. But at [393] the same time the defendant had become surety fbr the plaintiff by signing notes with him to a much larger amount, but had paid noth-¡ ing. Since that time he has paid upon these notes a larger sum than the amount due upon the account*' The question is whether, as against the assignee, he is entitled to have the amount so paid, set off against the account, in the hands of the assighee. The assignee takes the account, subject of course to all offsets ánd equitable defences. And we think there exists in a surety an equity from the time of his assuming the relation, by virtue of thd implied undertaking, • on the part of the principal, to see him im* demnified, and that, although no perfected right of action, accrues until actual payment. Still such payment has such reference to the original undertaking of suretyship, that it overides any equities of a subsequent date. This was so held in a somewhat similar case, where the debt was attached by trustee process; Strong v. Mitchell & trustees, 19 Vt. 644, where it was decided that the trustee might offset payments made under precisely the same state of facts as in the pres-’ ent case; such payments being made after the service of the trus* tee process. The principle' of that case is the same with the present. And in the case of Beach qui tam v. Boynton, 26 Vt. 725 it was held that a surety, upon the payment of the debt, was to be regarded as a creditor from the date of his suretyship. The equity of the defendant in this case is therefore superior to that of the as* signee. Judgment affirmed.