Woods, J.
This is an action brought against the defendants as joint and several makers of a promissory note, payable to the plaintiffs. One of the principals and one of the sureties is dead, and the other principal, not having been within the jurisdiction, has not been sei’ved with process, and is not before the court as a party; and the suit is defended by the remaining sureties only.
A verdict having been recovered by the plaintiffs for a sum materially less than they claim in the action, a motion has been submitted by them to set it aside for [15]*15exceptions taken at the trial, to evidence supposed to have been improperly admitted, and instructions communicated to the jury, relating to the law applicable to the facts proved, that are alleged to have been erroneous.
One exception is, that Josiah Rogers, who, by the name of Josiah Rogers, Jr., signed the note as a principal, and has been included in the writ as a defendant, gave a deposition which the court permitted to be used at the trial. It is quite obvious, if we lay no stress at all upon the fact that he is nominally a party to the suit, that he has an obvious interest in the result of it, which disqualifies him. from testifying ; since, whatever judgment the plaintiffs recover against the parties who defend, they being his sureties, it will, if paid by them, be evidence in their favor in an action against him for their indemnity. Jewett v. Davis, 6 N. H. 518.
Another exception is, that the court permitted the introduction of evidence to prove that the sureties were induced to sign the note by an agreement made by the plaintiffs through their cashier, that the bank would take measures to secure the payment of the note, by taking a sufficient mortgage of real estate from the principals. An obvious answer to this is, that it shows a different agreement from the one which the parties have reduced to writing. If the defendants gave the note upon the agreement that the plaintiffs should take a mortgage of land sufficient to secure the payment of it, it would follow, according to the theory of the defence, that a note absolute in its terms was to bind some of the parties to it, only upon the event of a further action on the part of the bank, that might or might not be possible. This would be contrary to a well settled and salutary rule of evidence, which precludes the introduction of parol evidence to contradict or alter the terms of a contract which the parties have reduced to writing. Spring v. Lovett, 11 Pick. 417 ; Hanson v. Stetson, 5 Pick. 506.
[16]*16If it were possible to confound this case with those in which the failure of the consideration of the note has been permitted to be shown in the defence of an'action brought to enforce the payment of it, by supposing that this agreement of the bank formed any part of the consideration upon which the sureties were induced to sign it, the evidence is clear that such would be no more than a part of the consideration, and would, therefore, form no ground of defence. If such an agreement was made, and could be legally proved, the parties seeking to avail themselves of its benefits must do so in an action founded upon it; for it is very plain that it can not be used as an agreement to defeat this suit.
The defendants, however, urge this undertaking of the bank as a fraudulent device to induce them to sign the note, which, by reason of the fraud, they seek to avoid. But the case wholly fails to furnish evidence upon which fraud could fairly have been found. All that the evidence tends to show is, that the bank made the agreement, and did not keep it. It would be an unauthorized presumption that should, without any indications beyond what those facts supply, establish on the part of the bank, a fraudulent and collusive purpose in their dealings with these parties. We think that the evidence does not appear from which an inference of fraud can fairly be drawn by a jury, and that it was erroneously left to them to consider such a question upon the evidence that was produced.
Another exception - to the verdict is, that the court instructed the jury, that if the bank caused the property of the principals to be attached, which there was no doubt might be held, it was bound to hold on to it for the benefit of the sureties, and as their trustees-.
As a general rule, a surety has a right to the benefit of any security which the creditor or a co-surety may have taken of the principal debtor; and if the holder of such security does any thing to impair it, by releasing it, or [17]*17otherwise, he loses, to the extent of the value of such security, his claim upon the surety, or for contribution. That is a well-settled principle ; but it does not go to the length of imposing any particular duty upon the creditor to take active measures to avail himself of that security, or to satisfy his debt out of it, instead of calling upon the surety. Far from it. The only right which the latter has to the fund thus pledged for his indemnity, is upon paying the debt himself, and then and thereby becoming substituted in the place of the creditor for the sake of the remedy. Mahurin v. Pearson, 8 N. H. 539; King v. Baldwin, 2 J. C. Rep. 554.
Neither can the surety require the creditor to sue the principal. But if he has already done so, and has a judgment against him which, by reason of the lien which it creates, or for any other cause, is more advantageous to a surety seeking indemnity against the principal, than would be an action in his own name, the authorities show, that by satisfying the just demands of the creditor, he may take an assignment of such judgment, and, in the name of the creditor, use it for the purposes adverted to ; and this is a benefit which the creditor is obliged to accord to him in proper eases. Hayes v. Ward, 4 J. C. Rep. 123 ; Clason v. Morris, 10 Johns. 524.
It is possible, that in analogy to these equitable rights of a surety, some claim might be founded to a right on his part, upon offering full indemnity against costs, and paying the entire debt, to be permitted to take the place of the creditor who has proceeded by an attachment to secure the claim against the principal debtor. But no such case is presented, nor is an opinion upon such a case required. Matter of M’Kinky, 1 Johns. Cas. 137.
The extent of the general principle of equity pervading this subject is, that the creditor shall do nothing that shall impair or defeat the rights of substitution which belong to the surety; but that, on the other hand, he is-[18]*18not held to the performance of any active service for the preservation of the rights of the surety. We may say, in the words of the wholesome maxim, “ Jura vigilantibus non dormientibus subveniunt.” He can not touch the security till he has first paid the debt. The safety of the creditor for whose benefit it is primarily taken, will not admit of any such interference of another that might tend to impair .it.
These principles seem to be well established in equity. They appear to provide sufficiently for the surety without conferring upon him the power of requiring the creditor, upon notice, to sue the principal debtor, or, suing him, to secure his debt by attachment. Nor are we referred to a case that holds, that having commenced an action, he shall not be permitted, if he sees cause, to discontinue his action, whether he has made an attachment or not.
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Woods, J.
This is an action brought against the defendants as joint and several makers of a promissory note, payable to the plaintiffs. One of the principals and one of the sureties is dead, and the other principal, not having been within the jurisdiction, has not been sei’ved with process, and is not before the court as a party; and the suit is defended by the remaining sureties only.
A verdict having been recovered by the plaintiffs for a sum materially less than they claim in the action, a motion has been submitted by them to set it aside for [15]*15exceptions taken at the trial, to evidence supposed to have been improperly admitted, and instructions communicated to the jury, relating to the law applicable to the facts proved, that are alleged to have been erroneous.
One exception is, that Josiah Rogers, who, by the name of Josiah Rogers, Jr., signed the note as a principal, and has been included in the writ as a defendant, gave a deposition which the court permitted to be used at the trial. It is quite obvious, if we lay no stress at all upon the fact that he is nominally a party to the suit, that he has an obvious interest in the result of it, which disqualifies him. from testifying ; since, whatever judgment the plaintiffs recover against the parties who defend, they being his sureties, it will, if paid by them, be evidence in their favor in an action against him for their indemnity. Jewett v. Davis, 6 N. H. 518.
Another exception is, that the court permitted the introduction of evidence to prove that the sureties were induced to sign the note by an agreement made by the plaintiffs through their cashier, that the bank would take measures to secure the payment of the note, by taking a sufficient mortgage of real estate from the principals. An obvious answer to this is, that it shows a different agreement from the one which the parties have reduced to writing. If the defendants gave the note upon the agreement that the plaintiffs should take a mortgage of land sufficient to secure the payment of it, it would follow, according to the theory of the defence, that a note absolute in its terms was to bind some of the parties to it, only upon the event of a further action on the part of the bank, that might or might not be possible. This would be contrary to a well settled and salutary rule of evidence, which precludes the introduction of parol evidence to contradict or alter the terms of a contract which the parties have reduced to writing. Spring v. Lovett, 11 Pick. 417 ; Hanson v. Stetson, 5 Pick. 506.
[16]*16If it were possible to confound this case with those in which the failure of the consideration of the note has been permitted to be shown in the defence of an'action brought to enforce the payment of it, by supposing that this agreement of the bank formed any part of the consideration upon which the sureties were induced to sign it, the evidence is clear that such would be no more than a part of the consideration, and would, therefore, form no ground of defence. If such an agreement was made, and could be legally proved, the parties seeking to avail themselves of its benefits must do so in an action founded upon it; for it is very plain that it can not be used as an agreement to defeat this suit.
The defendants, however, urge this undertaking of the bank as a fraudulent device to induce them to sign the note, which, by reason of the fraud, they seek to avoid. But the case wholly fails to furnish evidence upon which fraud could fairly have been found. All that the evidence tends to show is, that the bank made the agreement, and did not keep it. It would be an unauthorized presumption that should, without any indications beyond what those facts supply, establish on the part of the bank, a fraudulent and collusive purpose in their dealings with these parties. We think that the evidence does not appear from which an inference of fraud can fairly be drawn by a jury, and that it was erroneously left to them to consider such a question upon the evidence that was produced.
Another exception - to the verdict is, that the court instructed the jury, that if the bank caused the property of the principals to be attached, which there was no doubt might be held, it was bound to hold on to it for the benefit of the sureties, and as their trustees-.
As a general rule, a surety has a right to the benefit of any security which the creditor or a co-surety may have taken of the principal debtor; and if the holder of such security does any thing to impair it, by releasing it, or [17]*17otherwise, he loses, to the extent of the value of such security, his claim upon the surety, or for contribution. That is a well-settled principle ; but it does not go to the length of imposing any particular duty upon the creditor to take active measures to avail himself of that security, or to satisfy his debt out of it, instead of calling upon the surety. Far from it. The only right which the latter has to the fund thus pledged for his indemnity, is upon paying the debt himself, and then and thereby becoming substituted in the place of the creditor for the sake of the remedy. Mahurin v. Pearson, 8 N. H. 539; King v. Baldwin, 2 J. C. Rep. 554.
Neither can the surety require the creditor to sue the principal. But if he has already done so, and has a judgment against him which, by reason of the lien which it creates, or for any other cause, is more advantageous to a surety seeking indemnity against the principal, than would be an action in his own name, the authorities show, that by satisfying the just demands of the creditor, he may take an assignment of such judgment, and, in the name of the creditor, use it for the purposes adverted to ; and this is a benefit which the creditor is obliged to accord to him in proper eases. Hayes v. Ward, 4 J. C. Rep. 123 ; Clason v. Morris, 10 Johns. 524.
It is possible, that in analogy to these equitable rights of a surety, some claim might be founded to a right on his part, upon offering full indemnity against costs, and paying the entire debt, to be permitted to take the place of the creditor who has proceeded by an attachment to secure the claim against the principal debtor. But no such case is presented, nor is an opinion upon such a case required. Matter of M’Kinky, 1 Johns. Cas. 137.
The extent of the general principle of equity pervading this subject is, that the creditor shall do nothing that shall impair or defeat the rights of substitution which belong to the surety; but that, on the other hand, he is-[18]*18not held to the performance of any active service for the preservation of the rights of the surety. We may say, in the words of the wholesome maxim, “ Jura vigilantibus non dormientibus subveniunt.” He can not touch the security till he has first paid the debt. The safety of the creditor for whose benefit it is primarily taken, will not admit of any such interference of another that might tend to impair .it.
These principles seem to be well established in equity. They appear to provide sufficiently for the surety without conferring upon him the power of requiring the creditor, upon notice, to sue the principal debtor, or, suing him, to secure his debt by attachment. Nor are we referred to a case that holds, that having commenced an action, he shall not be permitted, if he sees cause, to discontinue his action, whether he has made an attachment or not. The same reason that would require a creditor to persist in a proceeding tending to secure his debt, and so incidentally to relieve the surety, would require him to commence one upon the occurrence of a favorable opportunity, and even demand of him vigilance in seeking one.
But the conclusive argument is, that no principle is found that, in terms or by any just analogy, sustains the case made by the defendants. They have done nothing that entitles them to require the creditors to prosecute their remedy, or to require them to cede to themselves the right to do so ; and the creditors have done nothing to impair the rights of the surety, or to render their indemnity more difficult than it would have been, independently of any action of the plaintiffs.
We have proceeded thus far upon the general ground that the remedy of the creditor against the debtor is in his own hands. He may use it or not, as he sees occasion, and may retire from the prosecution of it whenever his sense of his own interest dictates to him to do so. Fulton v. Matthews, 15 Johns. 433.
[19]*19But a stronger case in behalf of the plaintiffs is made by facts which arc in evidence. The defendants, some of them at least, knew of the intention of the plaintiffs to make the attachment, and declined to pai'ticipate in the hazards or expenses of the proceeding. They had an opportunity to make the suit their own, and declined to accept of that participation in it which alone could have furnished them with any cause to complain that the plaintiffs abandoned it. And if it could be admitted, as a general principle, that their relations to the cause and to the parties would give them any right, such as they claim, to require the plaintiffs to persist in their suit, it might admit of being very gravely questioned whether their declining the offered participation would not deprive them of the benefits of such a general rule, and be held to be a waiver of its advantages.
The conclusion, therefore, is, that all the evidence of the commencement of the action by the plaintiffs and its discontinuance was misapplied. The instructions were erroneously based, and the verdict must, for that cause, as well as for the others that have been indicated, be set aside, and a
New trial granted.