Hare v. . Grant
Supreme Court of North Carolina
Civil ActioN tried at Spring Term, 1877, of NORTHAMPTON Superior Court, before Buxton, J. James Clark the intestate of defendant was the guardian of one James P. Harrell, and the plaintiff was surety on his guardian bond.
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Civil ActioN tried at Spring Term, 1877, of NORTHAMPTON Superior Court, before Buxton, J. James Clark the intestate of defendant was the guardian of one James P. Harrell, and the plaintiff was surety on his guardian bond. The plaintiff alleged that in an action brought on this bond by Harrell, he was compelled to pay the amount demanded as due to the ward, as appeared by a return of said guardian made in 1851. At the trial term of said action, a nolle prosequi was entered as to the administrator of the deceased 'guardian, and judgment rendered against this plaintiff. This action was brought…
1Opinion of the Court
Read®, J.
Where a surety is sued with his principal, or' where he is sued alone and notifies his principal, so as to enable him to defend, or to furnish the surety with a de-fence, the recovery against' the surety is the measure of his damages against his principal. And in an action, as this is,, to recover of his principal, money paid to his use, the record of the recovery against the surety is conclusive evidence.
It would be iniquitous for the principal to stand by and see an excessive recovery against his surety, which he alone could prevent, and then set up the defence when his surety sues…
2Cases cited1 opinion
- Lewis v. FortSupreme Court of North Carolina · 1876
3Cited by6 opinions
- Leak v. . CovingtonSupreme Court of North Carolina · 1888
- Pegram v. Western Union Telegraph Co.Supreme Court of North Carolina · 1888
- Denny v. SaywardWashington Supreme Court · 1894
- Moore v. . SmithSupreme Court of North Carolina · 1895
- Saxon v. National Surety Co.Supreme Court of Oklahoma · 1928
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