24 A.2d 625
No. 3278.Supreme Court of New Hampshire Hillsborough.
Decided February 3, 1942.
In an action by a surety for reimbursement against his principal the latter cannot defend on the ground that he has brought a proceeding to vacate the judgment of the obligee against him. A surety upon payment of the debt to the creditor is entitled to maintain an action for reimbursement against his principal though the payment is voluntarily made and without the knowledge of the principal, or consulting him.
ASSUMPSIT, to recover the amount the plaintiff paid, with counsel fees, as surety on the official bond of the defendant as a deputy sheriff. The bond provided that in case the plaintiff incurred any liability on the defendant’s account, the defendant would repay to the plaintiff the full amount incurred, together with counsel fees. The defendant, while this bond was in force, incurred liability because he took certain property on a replevin writ for a financially unresponsible plaintiff, without requiring a bond sufficient to cover the value of the property replevied. The defendants in the replevin suit had judgment, only a portion of which was collectible from the surety on the replevin bond. They sued Gendron and recovered judgment for the balance of their damages. This judgment the plaintiff paid after execution issued.
Over three months after the plaintiff paid this judgment, Gendron moved to bring forward the replevin case and the suit on the judgment therein, to vacate both judgments, and in effect for new trials in both cases. Gendron’s motions were denied, and he excepted.
The plaintiff then moved in the present action for an affidavit of defence. Gendron filed an affidavit and alleged as his only defence the motions to vacate the two judgments and his expectation that this court will sustain his exceptions to the denial of those motions. The plaintiff then moved that the defendant be defaulted, on the ground that the affidavit showed no defence to the present action. This motion was denied, subject to the plaintiff’s exception. Blandin, J., transferred the question whether it would be a defence to the present action if the defendant should get the earlier judgments vacated.
William W. Forbes, by brief, for the plaintiff.
Robert J. Doyle, by brief, for the defendant.
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PAGE, J.
The judgment and the execution against Gendron was debt of the principal that the surety was bound to pay to the creditor, though as between the plaintiff and the defendant, the duty of payment fell upon the latter. Fidelity Deposit Co. v. Buckley, 75 N.H. 506. Upon payment of Gendron’s debt, even voluntarily and without consulting Gendron, the plaintiff was at once entitled to the remedy of assumpsit against Gendron for reimbursement. Odlin v. Greenleaf, 3 N.H. 270; Riddle v. Bowman, 27 N.H. 236; Brandt, Suretyship and Guaranty (3d ed.), ss. 226, 229. No question is raised on the facts as to any possible limitation of this rule in case the principal, knowing of some possible method of escaping payment of the judgment, warns the surety not voluntarily to pay it. In the want of such a situation, the judgment established the surety’s liability until he shows the contrary. Stearns, Suretyship (4th ed.), s. 176.
The case is much the same as if the defendant himself had paid the judgment and later had discovered ground for anew trial. Under such circumstances the judgment creditor would not be bound to repay the amount of the execution to the defendant, pending proceedings. The judgment creditor in this instance is entitled to hold the money paid by the plaintiff, and the defendant, on whose account the money was paid, is bound to reimburse the plaintiff, whose contract of suretyship does not bind it to “hold the bag” for the defendant under such circumstances as exist here. Gendron must look to the judgment creditors for his own reimbursement, when and if he becomes entitled to reimbursement. The question transferred is answered in the negative.
The defendant cites some authority for the proposition that an affidavit of defence is not a pleading. He further says that under the rules of the Superior Court an affidavit of defence is receivable only in cases the defendant has moved for a continuance. “There plain distinction between an affidavit filed for the purpose of obtaining a continuance, and a specification of a party’s claim or ground of defence.” Norton v. Hazelton, 45 N.H. 240, 242. The defendant’s affidavit was of the latter sort, and was in the nature of pleading. The motion to dismiss was in effect a demurrer. The plaintiff’s exception is sustained.
Case discharged.
All concurred.
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