
    CONSTITUTIONAL COURT, COLUMBIA,
    APRIL, 1815.
    John Woodbridge v. Joseph Scott.
    Plaintiff had become surety for defendant, and by way of indemnity took his note of hand; on which he afterwards commenced suit, but before he had paid the debt, for which he had, thus become bound. Held, that the plaintiff had no cause of action until he had sustained injury by his suretyship; and that a threatened injury, which might never take place, was not, of itself, sufficient to maintain such an action.
    Motion to reverse a decree of Judge Bay, in the Circuit Court, Abbeville district, on summary process.
    The plaintiff became surety for the defendant to re-pay §5(), borrowed, and took the defendant’s promissory note of hand, to be used by way of indemnity. The action was brought on this note before the plaintiff had suffered, or was in any immediate danger of sustaining damage by his suretyship. But before the .trial of the cause he paid the money due upon the note, for the payment of which he had become surety. Decree for the plaintiff with costs.
    For the defendant, it was contended that the plaintiff had no cause of action when the suit was brought: and that, at all events, the court ought to have allowed the defendant his costs, as there was no probability of the plaintiff’s being in any danger of suffering by having become the defendant’s security.
    Bowie, for the plaintiff,
    said that the plaintiff had received a let. ter pressing for payment of the note he had signed as surety, and threatening a suit. This letter was in evidence at the trial. To avoid a suit against himself, he commenced the present actiem His being in danger of sustaining damage, entitled him to sue by way of indemnity. Cited 2 Bay, 145.
    27th April, 1815.
   Nott, J.

The plaintiff had no cause of action. It was agreed that the note should not be used but by way of indemnity. To authorize its being used, there should have been a manifest danger of sustaining damage by reason of his engagement as surety.

Smith, J.,

of the same opinion. The action was brought too hastily.

Brevard, J.

The plaintiff could not bring suit on this note, con. sistently, with the agreement between him and the defendant, until he had sustained an injury by reason of his suretyship. It was intended as counter security. No claim to indemnity could arise until actual damage was suffered. Here it was only threatened, and might never have taken place. »

Gkihke, J., of the same opinion.

Motion granted.  