Dobie v. Fidelity & Casualty Co.

NewMAN, J. The question presented is whether the complaint states a cause of action. The action is by a surety to compel his principal to pay the debt for which both are liable, for the exoneration of the surety. It is ultimately the defendant’s liability. That party is the principal debtor, who is ultimately liable for the debt. The question is whether a surety can, in equity, compel his principal to exonerate him from liability, by extinguishing the obligation, without having first paid it himself. It seems to be well settled that a surety against whom a judgment has been rendered may, without making payment himself, proceed in [542] equity against bis principal to subject the estate of the latter to the payment of the debt, in exoneration of the surety. 2 Beach, Mod. Eq. Jur. § 90S; 3 Pomeroy, Eq. Jur. § 1417; Willard, Eq. Jur. 110; United N. J. R. & C. Co. v. Long Dock Co. 38 N. J. Eq. 142; Beaver v. Beaver, 23 Pa. St. 167; Gibbs v. Mennard, 6 Paige, 258; Warner v. Beardsley, 8 Wend. 194; 7 Am. & Eng. Ency. of Law, 486, cases in note. By the Court.— The judgment of the circuit court for Douglas county is affirmed.