Sikes v. Quick, 52 N.C. 19, 7 Jones 19 (1859)

Dec. 1859 · Supreme Court of North Carolina

52 N.C. 19, 7 Jones 19

CALEB SIKES v. JOHN B. QUICK.

Notice taat a surety has paid the debt of his principal, is not required to be given before bringing suit for the money paid.

Tins was an aetion of assumpsit, tried before Manly, J., at the last Fall Term of Pasquotank Superior Court.

The Action was for money paid by the plaintiff as the surety of the defendant, and the only question was, whether the action could be sustained, without showing that the plaintiff had given the defendant notice previously to the commencement of the suit.

By consent, a verdict was taken for the plaintiff subject to the opinion of the Court, upon the point stated, with leave to set it aside and enter a nonsuit, in case the opinion should be against the plaintiff.

Subsequently, the Court ordered a nonsuit, and the plaintiff appealed to the Supreme Court

Jordan, for the plaintiff.

Johnson, for the defendant.

Manly, J.

The objection made to the recovery in this case,

in the Court below, was, the want of notice to the principal before bringing the action.

This objection is not tenable. The general rule seems to be, that where one person, being under an obligation to do so, pays money, which another was primarily liable to pay, an action accrues immediately for money paid. The principal debtor is bound to keep in mind his liabilities, and at the proper time, to interpose between his surety and creditor for the protection of the former, and if he fail to do so, and the surety be required to pay, it is not necessary to the completion of his legal rights of complaint that he should hunt up his principal and make a demand.

"We are not aware that this point has, at any time, been -raised in our courts, but similar actions are very numerous, and the absence from every case of any such point is, of itself, high evidence of what the law is. In actions by a surety against his principal, notice to principal before suit, is no where recognized as an element of the plaintiff’s case. The cases are collated in the American edition of Smith’s Leading Cases, 1 vol. 228, and in Oldin v. Greenleaf, 3 New Hampshire Rep. 271.

On the trial below, the Court (in the absence of direct authority) was led into error from a supposed analogy between the relations of the parties, and that which exists between co-sureties. Such are the relations between co-sureties, that if onQfpay and make himself the creditor of the others, he ought, in common justice to notify them of this change of relation before he sues for contribution ; but such is not the case as between principal and surety.-

The nonsuit must be set aside, and judgment rendered upon the verdict.

Per Curiam,

Nonsuit set aside and judgment for plaintiff.