New Bedford Five Cents Savings Bank v. Union Mill Co.

128 Mass. 27, 1879 Mass. LEXIS 162

Opinion

Endicott, J.

The defendant does not deny his liability, but contends that the case should be continued for judgment until the amount of the dividend of the Union Mill Company can be ascertained and appropriated to the payment of the note. But we s-r.e no good reason why the case should be thus postponed, even if we assume that, as against the plaintiff, the liability of the company and the defendant is that of principal and surety. Where a principal and surety are liable on a note, and both are bankrupts, the holder may prove the amount against each, and receive dividends on the full amount, provided he does not receive in all more than his due; and when he has received a dividend from the principal, he may maintain an action for the balance against the surety. Sohier v. Loring, 6 Cush. 537. National Mount Wollaston Bank v. Porter, 122 Mass. 308.

In the case at bar, the plaintiff, being the payee of the note, has proved it in bankruptcy against the Union Mill Company, the principal, but has received no dividend. We are of opinion that he is entitled to judgment against the defendant, who is described in the note as surety; and, when the defendant has paid it, he will be entitled to stand in the place of the plaintiff, and receive any dividend which may be paid in bankruptcy by the Union Mill Company. U. S. Rev. Sts. § 5070.

Judgment for the plaintiff.