#### *Langford’s Ex’or v. Perrin. Perrins v. Ragland.

December, 1834,

Richmond.

(Absent Brooke, J.)

Sureties — Contribution among* — Case at Bar. — A. B. and C. are sureties for D. in a bond; j udgment is recovered against D. the principal, and the sureties. A. and B. but not against the other surety C. and a fl. fa. being sued out on the judgment, andlevied on the property of D. the principal, be gives a forthcoming bond, in which A. and B. and another-person join him as sureties; execution awarded on such forthcoming bond, is levied on the goods-of A. one of the sureties in the original bond, as, well as in the forthcoming bond: Held, A. has no-right to contribution from C. his co-surety in the original bond.

Same — Same*—What Constitutes Relation of Co-sureties — Case at Bar. — Judgment is recovered, and fl. fa. sued out against D. principal debtor, and A. and B. his sureties; the fl. fa. is levied on the goods of D. the principal, who gives a forthcoming bond, in which A. and B. and another person E. are bound as D.’s sureties; and on execution on the forthcoming bond, E. is compelled to pay the debt; Held, E. is co-surety with A. and B. for D. in th e forthcoming bond, not surety for A. and B. as well as D. and therefore, E. is entitled only to-contribution from A. and B. as co-sureties, not to full indemnity from them as principals.

A bond for 520 dollars was executed by Samuel Perrin, Park Perrin, Henry Perrin, *209and Sterling Langford, to John Green; the three last obligors being sureties for the first named obligor. The bond was assigned by Green to John Jones, who brought suit upon it, and recovered judgment against Samuel, Park and Henry Perrin (Langford being dead), and sued out a fieri facias agairist the three Perrins, which was levied on two slaves, the property of Samuel Perrin, the principal obligor; who, thereupon, gave a forthcoming bond, for the delivery of the property at the day and place of sale, in which Park and Henry Perrin (his sureties in the original bond, and co-defendants in the execution) and Fendall Ragland joined; the condition of the bond reciting, that Park and Henry Perrin and ^Ragland were sureties tendered by Samuel Perrin. The forthcoming bond was forfeited; and execution having been awarded thereon against Samuel, Park and Henry Perrin and Ragland, Jones sued out a fieri facias against them. This execution was levied on the property of Henry Perrin, and 229 dollars, part of the debt was made by the sale of his property; and then Ragland paid the sheriff the balance of the debt, which was now 400 dollars. By this time, Samuel and Park Perrin had become insolvent.

Henry Perrin made a motion (under the statute 1 Rev. Code, ch. 116, p. 460), against the executor of Langford, one of his co-sureties in the original bond, in the circuit court of Hanover, to recovor one half of the 229 dollars, which Henry Perrin had been compelled to pay under the execution upon the forthcoming bond: alleging, that as Langford was bound in the original bond, with Park Perrin and himself, as sureties for Samuel Perrin, and as Samuel and Park were insolvent, and Henry had paid 229 dollars of the debt, the executor of LangT°r<3 was bound to contribute one half of that sum to him, as his co-surety. Langford’s executor insisted, that the original debt for which he was bound as co-surety with Park and Henry Perrin for Samuel, and the judgment for the same, were absolutely discharged by the forthcoming bond executed by the three Perrins and Ragland, for the forthcoming and delivery of the property of Samuel Perrin, the principal debtor, taken in execution to satisfy the orig-inal judgment; and so Langford’s estate was absolved from all liability on the original bond, and the judgment thereon rendered, and consequently, from any duty to contribute to the sureties in the forthcoming bond. The court held, that Langford’s executor was bound to contribute a moiety of the money which had been levied of Henry Perrin’s property, under the execution upon the forthcoming bond; and gave judgment for Henry Perrin accordingly. Langford’s executor applied to this court for a supersedeas to the judgment; which was awarded.

*Fendall Ragland also made a motion against Samuel, Park, and Henry Perrin, to recover of them, the 400 dollars which he had paid in satisfaction of the balance due upon the execution sued out by Jones, on the forthcoming bond, against Samuel, Park and Henry Perrin, and Rag-land. Ragland insisted, that as the three Perrins were the defendants and debtors against whom the execution on the original judgment was issued, on which the forthcoming bond executed by the three Perrins and Ragland was taken, the Perrins were all principals in the forthcoming bond, and Ragland was their surety; and so they were all three bound to refund to him the 400 dollars he had paid in satisfaction of the balance due on the execution upon the forthcoming bond. Park and Henry Perrin insisted, that though the execution sued out by Jones on his original judgment, was against Samuel, Park and Henry Perrin, it had been in fact levied on the property of Samuel Perrin, the principal debtor, and the forthcoming bond having been given for the delivery of Samuel’s property so taken in execution, Park and Henry Perrin and Ragland were joint and co-suretics for Samuel Perrin in the forthcoming bond; and that, therefore, Park and Henry Perrin were only bound to contribute as co-sureties with Ragland, and not, as principals, to refund him the whole amount he had paid. The circuit court held, that Park and Henry Perrin, as well as Samuel, were principals in the forthcoming bond, and Ragland was tne only surety therein ; and gave judgment for Ragland, accordingly, against Samuel, Park and Henry Perrin, for the whole sum of 400 dollars by him paid, with interest &c. And to this judgment, upon the petition of Park and Henry Perrin, a supersedeas was awarded by this court.

The causes were argued here, together, by Lyons for Langford’s executor the plaintiff in error in the first case, and for Rag-land the defendant in error in the last; and by Scott for Henry Perrin the defendant in error in the first case, and for Park and Henry Perrin the plaintiffs in error in the last.

*

Sureties — Contribution among. — The principal case was cited with approval on this subject in Harnsberger v. Yancey, 33 Gratt. 540; *foot-note to*Preston v. Preston, 4 Gratt. 88; Dent v. Wait, 9 W. Va. 46, 48.

*CARR, J.

The judgment in the first of these cases, I^angford’s executor against Perrin, is erroneous. The debt for which Langford was bound as surety, was discharged by the levy of the execution sued out for that debt on the property of the principal debtor Samuel Perrin, and the forthcoming bond taken under that execution. Langford was no party to that *proceeding;*and if we were *io*hold that he was not discharged, we should put this surety in a strange situation : he was willing to go a certain length; but we should say he shall go all lengths. Suppose that after executing the original bond, he had become aware of his danger, and given notice to the creditor to sue; and when judgment was obtained, he had taken the sheriff along with the execution, shewed him ample property of the principal debtor, and told him, ‘ ‘levy the execution ; I clear my skirts of this business; proceed strictly; sell the property, and make the money.” But another friend of the debtor comes, and says, “ I will be surety for the forthcoming of the property; let the debtor have it.” The surety tells him, “Mark, if you do this, it is at your own hazard; I wash my hands of it; I am now clear, and determined to keep so.” Should we suffer this interloper to come upon the surety afterwards, and say, ‘ ‘I have paid this execution; you were *210once bound for it, and must therefore contribute.” Surely not.

Then, as to the other case, Perrins v. Ragland — If we look at it with the strict eye of a common lawyer, deciding on the deed of the parties, in the summary proceeding by motion, there would seem to be but little ground for doubt. Ragland has paid off an execution issued against himself and three others, and now moves to recover the whole sum paid, of the other three as money paid by him on an execution issued on a forthcoming bond executed by them as principals, and by him as their surety. When we look at the forthcoming bond, it recites that an execution had been levied on two slaves the property of Samuel Perrin, and that he being desirous of keeping the same in his possession till the day of sale, had tendered the above bound Park Perrin, Henry Perrin, and Ragland, as sureties for the forthcoming *and delivery thereof &c. And this is signed and sealed by Ragland as well as the rest. Is he not estopped, in this common law, summary proceeding, from contradicting his deed? But suppose not, are not Park and Henry Perrin, in fact and in law, sureties to this forthcoming bond? I think so. It is true, they were principals in the original judgment and execution: but that execution was levied on the property of Samuel Perrin, the true debtor: that levy discharged the execution, at least, until the property was legally disposed of; if sold, the debt was paid; if a forthcoming bond was taken, the execution was satisfied, unless it was quashed. To this forthcoming bond, I do not conceive that Park and Henry Perrin were necessary parties. It was given merely for the forthcoming and delivery of the. property taken; that property was hot theirs; and any sufficient surety for delivery of it was enough. Not being bound to enter into that bond, they might have either refused wholly, or decided to enter merely as sureties for the delivery of the property. And, assuredly, on this motion, they could only be liable in the character they assumed; that is, as co-sureties with this plaintiff.

CABELL and BROOKE, J., concurred.

TUCKER, P.

I concur in the opinion that the judgments in both cases are erroneous.

I. As to Langford’s executor v. Perrin. By the levy of the execution on the property of the principal debtor, Samuel Perrin, Langford, who was the surety in the original bond, was relieved of his responsibility. Clerk v. Withers, 1 Salk. 322; Cooper v. Chitty, 1 Burr. 34, cited by Roane, J., in Lusk v. Ramsay, 3 Munf. 441. Had the property been permitted to remain in the hands of the officer and at his risk, Langford would have been discharged of the debt by the proceeds of sale, unless they fell short of the demand. Others, however, intromitted: they became sureties, — not for the original debt, but for the return of the property upon the day of sale, — and thus, were instrumental *in withdrawing the property from the officer’s control, and replacing it in the hands of the debtor, upon his engagement to deliver it up for sale. He has failed in his engagement; he has forfeited his bond: who ought to be responsible? Not Langford, who had been absolved by the levy, but the sureties in the forthcoming bond, wno by their interference have given a new credit to Samuel Perrin, and have enabled him to get back, and to eloign the property which, but for their interference, would have paid the debt. If, indeed, the case of Lusk v. Ramsay, 3 Munf. 417, is to be considered as the law of the court, then the case is still stronger; for, according to that authority, it was within the power, as it certainly was the engagement, of the sureties in the forthcoming bond to return the property. Had they performed their engagement, Langford would have been discharged by a sale of the debtor’s- effects; and, surely, they cannot expect to charge him again, by their failure to perform. They cannot be in a better, nor place him in a worse, condition, by their own wrong. The truth is, that had Langford paid the debt, he would, on principle and authority, have had a right to compel the sureties in the delivery bond to indemnify him, since by their confidence in the debtor, and by their interference, they had prevented the payment by the principal. He would have had a right to an assignment of the forthcoming bond, upon the authority of the case of Parsons v. Briddock, 2 Vern. 608, approved by the master of the rolls in Wright v. Morley, 11 Ves. 22. In that case, the court directed the bail bond of the principal debtor to be assigned over to his surety in the original bond; considering the bail, by his introvention, “as coming in the room of the principal debtor as to the surety.” Nothing certainly can be more reasonable; whereas nothing could be more unjust, than to give recourse against the surety, to those who have been the means of withdrawing the funds of the principal appropriated to his indemnity, and adequate to his exoneration but for their interference. The judgment of the circuit court is to be reversed, and a judgment entered, that the plaintiff take ' nothing by his motion.

*II. Perrins v. Ragland. The judgment in this case, has been rendered upon the idea, that Park and Henry Perrin, though but sureties in the original bond for Samuel Perrin, were, quoad Ragland, a principal debtor, and liable for the whole demand. It can be sustained on no other principle; and the question truly is, whether in this case Ragland is to be considered as a surety for Park and Henry Perrin, or as a co-surety with them.

We have recently had occasion to examine this doctrine of contribution, and surety-ship, with some attention. Baxter v. Moore, ante 219, and have followed with entire satisfaction, the principles laid down in Craythorne v. Swinburne, 14 Ves. 159. We are satisfied, that if the relation of surety for the debtor is formed, the sureties shall be entitled to relief, whether they are bound by the same or by several instruments, provided always it is for payment of the same debt or the performance of the same duty. And, in like manner, we readily admit, that the surety for a principal debtor, may stand in the relation of principal to a supple*211mental surety, where that was the obvious meaning of the undertaking.

Here, however, the forthcoming bond is a distinct and independent engagement; not constituting part of, or being a supplement to, the original bond or contract, but binding the parties to the performance of a different act, who accordingly engage with each other upon new and different terms. The original bond was for the payment of money: the sureties to that bond engaged to see that money paid. The forthcoming bond is for the delivery of property; of the property too of one of the parties to the judgment, in suspension, and eventually in entire discharge, of the demand against the others. The sureties in the forthcoming bond engage for the delivery of the property. Those who are parties to it alone are liable for the failure, to the creditor, or to each other. And hence, we have decided in Langford v. Perrin, that as Langford did not execute the forthcoming bond, he was not chargeable at all, though the original judgment was for a debt for which he also was bound. If this decision be *righ't, then there was not the privity of surety and principal between Rag-land and Langford, notwithstanding Lang-ford was a party to the first contract. Nay more, we have held, that though Henry Perrin and Langford were co-sureties to the original bond, yet Henry Perrin having assumed the character of surety in the forthcoming bond, even he could not have contribution against Langford, because Langford did not join in it. In truth, Park and Henry Perrin and Ragland are all chargeable for the breach of the forthcoming bond, not for the non-payment of the original debt; for that had, in effect, been discharged by a sufficient levy. If so, it was clear that Langford was not chargeable for the breach of a contract to which he was no party. It is said, however, that Henry and Park Perrin were principals and not sureties in the forthcoming bond. I do not think so. We have just seen, that had they refused to join in it, they would have been altogether absolved. They would in that event have been held to be neither principals nor sureties. If so, their obligation arises solely from their joining in the forthcoming bond, and it can neither be modified nor enlarged, by the fact that they were parties to the original judgment. The debt for which they were sureties had been, in effect, satisfied by a levy on sufficient property. That property the principal debtor desired to retain, and gave the bond to restore it. The contract was a precise engagement that he would do so. Who was the principal in that contract? He whose property was taken and restored; he who under the law demanded its restoration on giving security; he who engaged to deliver it at the place of sale. And who were the sureties? Those, and all those, who signed the forthcoming bond, and undertook for the owner of the property, that he should produce it at the day of sale. They undertook as sureties; they are called sureties in the forthcoming bond, and they were, I think, properly so called. Whether the sheriff would have been excused, if he had taken no other sureties, is not necessary to be decided. It is sufficient, that but for their uniting in this bond Henry *and Park Perrin would not have been liable at all. By joining in it, they are, therefore, only bound as far as that bond binds them; that is, as far as any other person would be bound, and as far as Rag-land bound himself. They were therefore co-sureties with him, and the judgment should have been accordingly.

This judgment, then, is erroneous in this, that the appellants were only liable to Rag-land in the character of sureties, and ought not to have been considered principals, without evidence, that Ragland had, at their instance, become surety in the forthcoming bond, and so was surety for them, instead of co-surety with them. Therefore, judgment reversed, and cause remanded &c.