
    Samuel Stinson v. Wm. Brennan, Administrator of Crowder.
    A surety on a note, ■wRo Ras let judgment go by default, and Ras paid the debt, Ras recourse upon Ris principal for indemnification, notwithstanding that the latter, who was sued at tRe same court, by defending the case, obtained a decree in Ris favor. But, semble, not if Re Rad been notified of the defence.
    Before Butler, J.; at Chester, Fall Term, 1839.
    Sum. pro. for money paid by the plaintiff, who was surety on a note of William Crowder, intestate. He was sued, let judgment go by default, and paid the debt and interest. The administrator of Crowder was sued at the same court, defended the case and got a decree in his favor. The defendant contended that he was not liable to indemnify the plaintiff, who might evidently have prevented the recovery against him; but the presiding judge “ thought that it was the defendant’s own business, and if he did not defend the case, and the plaintiff was compelled to pay the money, .then the defendant’s intestate would be liable to him.” Peters v. Barnhill, (1 Hill, 234.)
    See 10 Riot. 427. An.
    
    A decree was given for the plaintiff, and defendant appealed,—
    Because the Court erred in holding that the defendant was liable to the plaintiff for the debt paid as surety, when it had previously decreed that the principal was not bound to pay the debt; especially as the defendant, having no notice of the suit, could not have been reasonably expected to defend it.
    
      Thompson and Eaves, for the motion.
   Curia, per Butler, J.

A principal on a note occupies a double position, involving two liabilities. He is responsible to the party with whom he makes the contract, and, also, to his surety, who may have paid the money for him. If the surety had paid the money voluntarily when due, — as constantly occurs in commercial cities — it is conceded that he would then have his action. When the same payment is enforced by law, he cannot surely hold a worse position, nor 1 the principal a better. To the suggestion that the surety might have resisted and defeated the recovery, he may reply that he was á stranger to the consideration of the note, and was privy to nothing more than the terms of an absolute obligation, which he bound himself to make good if not punctually fulfilled. But if he had been made privy to his principal’s defence, then he might have lost his right to redress.

Defendant’s motion dismissed; the whole Court concurring.  