Bishop v. Day

13 Vt. 81

Opinion

The opinion of the court was delivered by

Bennett, J.

There is one view of this case in which we are all agreed, that the bill of the orator presents an equitable right which we can recognize. After the notes were executed by Bishop to Spooner, by some subsequent arrangement between Bishop on the one part and Day, Cottrill & Barker, •on the other, the latter gave their bond to Bishop, conditioned to pay the notes to Spooner and save Bishop harmless therefrom and this bond is fully set out in the bill. By this arrangement Day, Cottrill & Barker made these notes their debt to pay, and, as between these parties, they stood as principals, and Bishop in the nature of surety ; and the doctrine applicable to principal and surety well applies. At law, the surety must pay the debt before he can have an action against his principal. But not so in equity. After the debt has become due, the surety may resort to chancery to compel the principal to exonerate him from all liability by the payment of the debt. This is a reasonable doctrine and has long been well established.

Mitford’s Eq. Pl. 148. 1 Stor. Com. on Eq. 322, sec. 327. 2 Stor. Com. on Eq. 35, sec 730. The case of the Earl of Ranelaugh v. Hayes, 1 Ver. 189, is much like the present. The Earl had been sued for a sum of money which he was bound to pay to the King, and which the defendant, by an agreement between them, ought to have paid; and the Lord Keeper decreed that the defendant should perform his covenants. This bill, it is true, is informally drawn with this view of the case-; but it contains all the facts necessary to create this equitable right in the orator ; and though the bill was evidently drawn with'a different aspect, yet, under the general prayer of the bill, we can grant such relief as the party entitles himself to, according to his allegations and proofs. Day, Cottrill &. Barker have suffered Bishop to be sued on the notes, and they have passed into judgment and execution, and he may well ask a court of chancery to decree that they pay the judgment.

The apparent object of this bill is to procure a perpetual injuction of the judgment; and this is the relief which is specifically prayed for; and the case has been put upon this ground, in argument, but it may, I think, be well questioned whether the bill can be sustained on that ground. As, however, it is clear that the bill discloses an equity in the orator, in the view now taken by this court, there is no occasion of going into any other questions. The decree of the court of chancery must then be reversed, and the cause remanded to that court to be proceeded with accordingly.