Brewer v. Franklin Mills

Bell, C. J.* In the case of Edgerly v. Emerson, 23 N. H. 555, it was held that a surety paying the debt may stipulate for an assignment of all the collateral securities of the creditor against the principal, and such assignment will be protected in courts of law as well as in equity. Though in general the payment of a debt by any person who is liable to its payment is a discharge of it, yet, if the co-debtor making the payment is a surety, the debt will be held undischarged, so far as is necessary to preserve and give effect to the collateral securities against the principal, assigned by the creditor to the surety. An attachment under our laws is such a collateral security for the payment of the debt, as to come within the same reason and rule as a mortgage, pledge, or other security. The lien of the attachment will be preserved for the benefit of the surety, who pays the debt and takes an assignment of the debtor’s securities, in the same manner and to the like extent, whether the payment is before or after judgment. A judgment may be entered up to be levied on the property attached, or if judgment is rendered, a levy on that property may be effectually made, for the [294] benefit of the surety, though the execution could not properly be used for other purposes. See Low v. Blodgett, 21 N. H. 121, and Rochester Bank v. Gowdy, there cited. The soundness of these principles we have seen no reason to question. The only question here, is whether the case comes within these rules. It distinctly appears that Nesmith and others were sureties. It has never been held material to the right of sureties to claim indemnity from their principal, or an assignment of collateral securities from the creditor, on payment of the debt to him, that they were bound by a different instrument from the principal, or that their contract was circumstantially different from his, as where their obligation is contingent or conditional. If they are bound for the payment of the same debt, for the same debtor, to the same creditor, they are, as to the subrogation of the creditors’ collateral securities, to be regarded as sureties. Craythorne v. Swinburne, 14 Ves. 160; Norton v. Coons, 2 Seld. 33; 1 Story’s Eq. Jur., sec. 495; Adams’ Eq. 608. The understanding and agreement stated in the case, that Nesmith and others should have the right to prosecute this action, and have the benefit of the attachment of the defendants’ property upon the writ, is distinct and explicit. It shows clearly the intention of the parties to transfer and to acquire the right of action for the benefit of the sureties. If the manifest intent of the parties to sell and to purchase the plaintiffs’ claim was in law sufficient to transfer the claim, this agreement was quite sufficient. If a formal or written transfer was required, it was entirely ineffectual. This question, whatever doubts may have existed on the subject, is settled here and elsewhere, we think, conclusively. In Thompson v. Emery, 27 N. H. 269, it was held that the assignment of a chose in action may be by parol, and a delivery of a note or bill, upon a good con [295] sideration, is a sufficient assignment. The cases cited by the court, Hawell v. McIvors, 8 D. & E. 690; Heath v. Hall, 4 Taunt. 326; Titcomb v. Thomas, 5 Greenl. 282; Clark v. Rogers, 2 Greenl. 147; Jones v. Witter, 13 Mass. 304; Prescott v. Hall, 17 Johns. 284, well sustain the decision. Many others may be added, as Briggs v. Dorr, 19 Johns. 95; Ford v. Stewart, 19 Johns. 342; Dunn v. Snell, 15 Mass. 485; Porter v. Bullard, 26 Me. 448; Grover v. Grover, 24 Pick. 263; Ball v. Larkin, 3 E. D. Smith 555; Spafford v. Paige, 15 Vt. 490; Crain v. Paine, 4 Cush. 483; See 3 Lead. Cas. in Eq. 307, 357. Judgment for the plaintiffs. Footnotes [*] Nesmith and Bartlett, J. J., did not sit.