Page:Federal Reporter, 1st Series, Volume 1.djvu/229

 KUPPEL V. PATTERSON. 221 �surety as against eVery liability growing out of that relation, and 80 to reimburse him whatever sum he may pay neces- Barily by reason of bis vicarious engagement. Especially is this obligation imperative where payment bas been made involuntarily by the surety under the coercion of a legal pro- ceeding, wbicb he exhaustively, though unsuccessfully, con- tested. It is no answer to bis demand for reimbursement to say that questions "wbicb be fairly presented in the creditor's suit, and were decided against him by a court of competent jurisdiction,were decided erroneously, and ought to be recon- sidered and rejiïdged, because the only duty which the law imposes upon him, as between him and the principal debtor, is to oppose to the creditor's action every proper defence known to him, or to cast the burden of defence entirely upon the principal by giving him notice to that effect. In either case the resuit is decisive as to the principal and surety alike, in a subsequent controversy between them. �This is the purport of the instruction to the jury, and we are unconvinced that there was any error in it. �As it is practieally decisive of the defendants' liability it is immaterial to consider whether the alleged reiease by Stewart to the defendants discharged the debt claimed here, and so released the plaintiff, as surety, or was only a covenant net to sue the defendants, with a revocation of the creditor's right of action against the plaintifif. It is not an open question. �The remaining reason for a new trial is the alleged error of the court in instructing the jury that the statute of limita- tions began to run against the plaintiff from the time when he paid the debt for which he was liable as surety, and not from the time when the defendants made default in the pay- ment of it to their creditot. �It is obvious that, until the plaintiff paid the debt, he had no legal demand against the defendants, nor could he main- tain an action at law to recover it. Now the statute of limit- ations operates imperatively upon legal remedies only, pre- cluding a resort to them after six years from the date when the right to maintain them accrued. Until the plaintiiï was in a position to maintain an action against the defendants the ��� �