Surety's claim for contribution from co-sureties before paying the debt is dismissed as no debt exists yet.
Cipro (CY)
Sintesi Legislator
Generato dall'IAThe court dismissed the surety's claim to obtain judgment against co-sureties for their contribution before paying the guaranteed debt. The plaintiff argued that equitable remedies should allow recovery before payment, but the court noted that indemnification rights do not constitute a present debt. Consequently, the court held that a right to recover from co-sureties only accrues after the surety has actually paid the creditor.
Regesto Legislator
Generato dall'IAs. 1 of the Civil Procedure Law; A surety cannot obtain judgment against co-sureties for contribution before paying the debt because the right to indemnification does not constitute a present actionable debt.
Parole chiave
Generato dall'IAGiurisprudenza citata
Generato dall'IADecisioni correlate
Generato dall'IATesto completo
[*104] 1978 December. 14
(PIKIS, P.D.C.)
IR THE DISTRICT COURT OF LARNACA
Cyprus Popular Bank (Finance) Ltd.,
Plaintiffs,
v.
Fellas Brothers and Others,
Defendants.
(Action No. 960/78)
Principal and surety - Rights of surety against principal debtor and co-surety before satisfaction of the guaranteed debt.
A. Poetis, for the judgment debtor 4.
JUDGMENT
The following judgment was delivered by:-
PIKIS, P.D.C. A short and, to my comprehension, novel point arises for consideration: Whether a surety, against whom judgment has been given jointly and severally with the principal debtor and co-sureties, can obtain [*105] judgment before paying the judgment-debt either against the principal debtor for the whole sum or against his co-sureties for what would be their contribution had he paid the judgment-debt.
Learned counsel for the surety submitted that this is possible and made reference to the analysis of the law on the subject in Halsbury's Laws of England,3rd edition Vol. 18 p. 476 where an analysis is made of the rights of a surety before satisfaction of the guaranteed debt. It appears to be well settled that several remedies are available in equity to a surety to enforce his indemnity before himself paying the debt. These include an order to pay the guaranteed debt as well as an order compelling him to set aside a fund out of which the debt may be satisfied. No reference is made to any corresponding rights in equity against co-sureties and though the point need not be considered in the present proceedings it is debatable whether a similar equity operates against a co-surety. On the other hand it is equally clear that until the surety has paid the creditor the surety's right to indemnification does not constitute a debt and it is not actionable as such. (See Hulsbury's Lawsof England, 4th edition, volume 20, paragraphs 202,
315 - see also Re Mitchell (1913) 1 Ch. 201 - Re Bevan (1913) 2 Ch. 595 - Israelson v. Dawson (1913) 1 K.B. 301.) The recovery of judgment for a sum certain is only possible where a sum is presently owing to the plaintiff which he has a right to recover. Such right can only accrue to the surety [*106] against the principal debtor after the payment of the judgment debt.
For the reasons above given the claim of the defendant against his fellow defendants for judgment for a sum equal to what the defendant/plaintiff may be required to pay in due course under the judgment in favour of the plantiff cannot be sustained and it is dismissed. No order as to costs.
Claim against co-defendants
dismissed with no order as
to costs.