Mahurin vs. Pearson and Bellows, 8 N.H. 539

Parker, J. The evidence offered is not sufficient, to discharge the surety. Mere delay by the creditor to collect the debt, after a request to that effect from the surety, will not operate as a discharge, (3 N. H. R. 231,) ánd we are of opinion that the evidence does not show such a renunciation of all claim upon the surety, as can avail to discharge him without any consideration paid, or evidence of loss sustained. 2 Stark. Rep. 228, Parker vs. Leigh; ditto 531, Adams vs. Gregg; Doug. 247, Dingwall vs. Dunster; 1 Camp. 35, Whately vs. Tricker; 8 Pick. 122, Baker vs. Briggs; 2 Johns. Ch. Rep. 557, King vs.

Baldwin. Whether evidence of the latter description is admissible in such case may perhaps admit of question. But the court erred in rejecting the set-off. It being shown that Bellows is a mere surety, we are of opinion there is sufficient mutuality in a debt due from the plaintiff to Pearson, to authorize it to be allowed in set-off, under our statue. 6 N. H. R. 27, Woods vs. Carlisle; 4 Bing. 423, Bourne vs. Bennett; 12 Ves. 349, ex parte Hanson; 18 Ves. 232, S. C. The cases in Vesey are cited without disapprobation by Chancellor Kent, 4 Johns. Ch. R. 15, Dale vs.

Cooke, although he held as a general principle “ that joint and separate debts cannot be set off against each other in equity any more than at law.” There are several considerations which show the propriety of allowing the set-off in this case. If the debt from the plaintiff to Pearson, which was offered in set-off, was contracted after that now in suit, it very probably might have been regarded by the parties as in effect a payment thus far. It is at least but equitable that it should so ope^ rate, whether contracted before or after.

The rule in equity is, that if a creditor have security, the surety, on payment by him, is entitled to be substituted, and to have the benefit of that security. 8 Pick. 122; 4 Johns. Ch. R. 129, Hayes vs. Ward; 4 Ves. 829, Law vs. The East India Company; 7 Wend. 326, Evernghim vs. Ensworth. If, instead of having security, the creditor owes the principal part of the amount, and the principal is willing to put it in set-off, it is equally reasonable that the surety should have the benefit of the credit which the creditor has obtained of the principal.

And, moreover, it will tend to prevent multiplicity of actions ; for, should the plaintiff collect his debt of Bellows, the latter must have an action against Pearson to recover the amount, and Pearson will have a right of action on the claim now offered in set-off. Whether any thing can be set off in this or any other case beyond the balance due from the plaintiff, on an adjustment of all the demands between the parties which are not comprehended in the suit, is a question not settled by this decision. New trial granted.