Counter-security for joint surety liability must also benefit co-sureties; matter remanded for fresh consideration with further evidence allowed.

Where one surety obtains counter-security from the principal debtor for a common joint surety liability, that security must also benefit the co-sureties. The court noted that this plea had not been fully examined below and the pleadings were not clear enough to make the point explicit. Fairness required giving the defendant an opportunity to address the issue through additional evidence. The lower appellate decree was therefore set aside and the matter remanded for fresh disposal with liberty to adduce further evidence if necessary.

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Issues: Whether the defendant, having obtained counter-security from the principal debtor in respect of the joint surety liability, could be required to account for the benefit of the plaintiff, and whether the matter required remand for further evidence.

Analysis: The principle applied was that where a surety receives counter-security from the principal debtor for a common liability, the benefit of that security must enure to the co-sureties as well. The plea founded on this aspect had not been fully considered by the courts below, and the plaint was not drafted with sufficient clarity to make the case explicit. In these circumstances, fairness required that the defendant be given an opportunity to meet the point by adducing further evidence if he chose to do so.

Outcome: The decree of the lower appellate court was set aside and the matter was remanded for fresh disposal, with liberty to take further evidence if necessary.

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