Croy v. Clark

Newcomb, C.

The complaint in this case alleges that the appellant and appellee were co-sureties for Squire Clark on a promissory note executed to one Ferguson ; that the latter obtained judgment against the principal and sureties, which judgment the appellee had been compelled to pay. Prayer for judgment against appellant for his portion of the debt so paid.

The only question presented is whether it was necessary to aver in the complaint that the principal was insolvent. It has long been law in this State,'that in an action by one surety against another for contribution, it is neither necessary to aver nor prove that the principal is insolvent. Judah v. Mieure, 5 Blackf. 171; Rankin v. Collins, 50 Ind. 158.

The judgment ought to be affirmed, with costs and ten per cent, damages.

Per Curiam. — It is therefore ordered, upon the foregoing opinion,that the judgment below be, and it is hereby, in all things affirmed, at the costs of the appellant; and that the appellees recover of the appellant the sum of twelve dollars and thirty^-eight cents as and for his damages occasioned by/ said appeal.