#### JOHNSON LEDBETTER vs. THOMAS J. TORNEY & AL.

A surety, who has paid money for his principal, cannot sue him in on action of tort.

The case of Williamsonv. Dickens, 5th Ire. 259, cited and approved.

Appeal from the Superior Court ot Law of McDowell County, at the Spring Term 18S0, His Honor Judge Caldwell presiding.

This is a suit in tort, to recover from the defendants a certain sum of money, paid by the plaintiff to their use. The defendants, among other pleas, pleaded severally their certificate and discharge under the bankrupt law. On the trial it appeared, that the plaintiff became the surety of the defendants to one Logan for $2100; that, on the defendants becoming insolvent, he was forced to pay the said debt with costs, and, thereupon, instituted this suit. The Court was of opinion, that the plaintiff could not elect to sue in tort in this case ; and, in deference to this opinion, the plaintiff submitted to a non-suit and appealed.

J. Baxter, for the plaintiff.

J. G. Bynum, Avery and N. W. Woodfin, for the^de fondant.

*295Pearson, J.

The only question is, whether a surety, who has paid money for his principal, can declare in tort; so as to escape from the plea of a certificate in bankruptcy. The plaintiff’s counsel was not able to show any authority in support of his position, and it cannot be supported upon any fair reasoning upon the nature of the cause of action. In fact, if a surety is allowed his election to declare in tort or in contract, the landmarks, by which actions are distinguished, will be entirely obliterated ; and the marked difference, between actions ex con-tractu and actions ex delicto. will be lost sight of.

In Williamson v. Dickens, 5 Ire. 259, it is held, that, when a creditor has a claim, which he may enforce, either by an action of assumpsit or in tort, if he sues in tort, his action is not barred by a discharge in bankruptcy, and when an agent has failed to collect, or has collected and misapplied the funds, the principal may declare in contract or in tort at his election. So if a carrier or other bailee fails in the diligence required, he may be sued in contract or in tort.

Without undertaking to run out the dividing line between those cases, in which the plaintiff must declare in contract and those when he has his election to declare in contract or in tort, and to reconcile the cases, it is sufficient for us to say, that there is no authority nor reason for allowing the plaintiff in this case to declare in tort.

Per Curiam. Judgment affirmed-