#### *Harrison v. Lane and Others.

November, 1834,

Richmond.

[27 Am. Dec. 607.]

(Absent Brooke and Brockenbrough, J.)

Deputy Sheriff — Two Officiaf Bonds — Contribution among Sureties* — Case at Bar. — W. deputy ofB. sheriff of F. county, gives a bond to his principal with five sureties, for the faithful discharge of the office of deputy sheriff; but L. not being satisfied with this security, W. and three other persons, as his sureties, give a second bond to L. with like condition, a memorandum being indorsed on this second bond, at the time of its execution, in conformity with a previous agreement, that L. should not resort to the second bond for indemnity for the misconduct of the deputy in office, so long as the sureties in the first bond should be resident in fhe state, and it should appear that he could be indemnified without reco urse to the sureties in the second bond ; L.. the sheriff recovers judgment on the first bond against the sureties therein bound, for the amount of damages sustained by him by reason of the deputy sheriff’s misconduct in office: Held, the sureties in the first bond, have no right to contribution from the sureties in the second.

This case, • as it appeared in proof, was thus : William Dane having been appointed sheriff of the county of ffairfax, James Wigginton made application to him for the office of deputy, and offered to give him a bond for the faithful discharge of the office, with five sureties, namely Hedges, Hayes, Wagoner, Purcell, and the appellant Harrison. Dane being, at the time, satisfied with the sufficiency of the surety Harrison, though he had no confidence in Wigginton’s solvency, or in that of the other sureties, agreed to appoint Wigginton his deputy, upon the due execution of an official bond by him and the five sureties he had named; and the bond was accordingly prepared, executed by Wigginton and the first four named sureties, and a sixth seal put to it for Harrison, and then sent by Dane to Harrison to be by him executed; and Harrison did execute it by signing his name opposite the sixth seal. The bond, thus executed, was delivered to Dane; and he thereupon admitted Wigg-inton as his deputy; but after Wigginton *had been in the office a short time, Dane apprehending that all the sureties but Harrison, were in doubtful or insolvent circumstances, insisted that Wigginton should give him additional security for the faithful execution of the office ; in consequence of which, Wigginton, with Hancock, in Waugh and Blackburn, as his sureties, executed another bond to Dane. This second bond was the same in form with the first bond ; that is, both were in the usual form of a deputy sheriff’s official bond to his *principal;*but on this second bond, there was a memorandum indorsed and signed by Dane, expressing-that it was expressly understood, that in case Wigginton should be delinquent, and Dane should be obliged to proceed against his sureties for indemnification, he Dane would not “execute the sureties in this-bond,” "so long as the sureties in the first bond should be resident in the state, and it should appear that he could be completely indemnified without resorting to the sureties in the second bond. And it was proved, by parol evidence, that this memorandum on the second bond was executed at the same time with the bond, and that the memorandum was made by Dane in conformity with a previous agreement between Wigginton and the sureties, Hancock, Waugh and Blackburn, on the one part, and Dane on the other.

Wigginton was then permitted by Dane to continue in the office of deputy, in which he committed many acts of official misconduct, for which Dane was sued, and several judgments were recovered against him ; and Dane brought suits against Wigginton and his sureties in the first bond, and recovered' judgments against them for the amounts adjudged against himself on account of Wigginton’s defaults ; but before these judgments were recovered by Dane, Wigginton and all the sureties bound in the first bond, except the appellant Harrison, had become insolvent, so that the whole burden fell upon Harrison alone.

Harrison then exhibited a bill, in the superiour court of chancery of Richmond, against Dane and Hancock, Waugh and Blackburn, the sureties bound in the second *bond, alleging, that Dane, when Wigginton offered the persons named in the first bond for his sureties, was well apprised that all of them were insolvent but Harrison, and induced Harrison to join in that bond, by concealing the fact from him, and by representing to him that other good sureties would also become bound for Wigginton, that when Wigginton tendered him the first bond fully executed by the parties he refused to receive it, and required another bond with other sufficient sureties that the second bond was executed in consequence of this requisition, and the design of it was, dither that it should be a substitute for the first bond, or that the sureties in the second bond should stand equally and jointly responsible with those bound in the first, for all the acts of Wigginton in his office of deputy sheriff ; that Dane would not permit Wigginton to exercise the office of deputy, *161till the second bond was executed, and it was upon the security of that bond alone that Wigginton was admitted as his deputy ; that the memorandum indorsed on the second bond, was executed sometime after that bond was delivered, and thus Lane attempted to alter the obligation incurred by the sureties therein bound ; and that Lane having absolutely rejected the first bond, had, in truth, no right to hold it. Therefore, the bill prayed an injunction to inhibit Lane from executing his judgments at law against Harrison; and, if it should appear that Lane was entitled to the benefit of those judgments against Harrison, that Hancock, Waugh and Blackburn, should be compelled to make equal contribution with him for the satisfaction thereof.

The injunction was awarded. The defendants answered, shewing the facts of the transaction as above stated, and denying all the allegations of the bill variant from that state of the case. And the evidence filed in the cause, in the opinion of the chancellor and of this court, instead of substantiating the allegations of the bill, proved the truth of the answer.

The chancellor dissolved the injunction and dismissed the bill with costs ; from which decree, this court, upon the petition of Harrison, allowed him an appeal.

^Nicholas and Wickham, for the appellant.

Briggs, for the appellees.

*

Contribution Among Sureties. — It is well settled that if persons are sureties for the same debt or for the performance of the same duties, each will be made, in equity, to contribute, though they be bound by different bonds, and though they knew nothing at the time of the obligations of each other. Corprew v. Boyle. 24 Gratt. 290, 292, citing the principal case as affirming the proposition.

But the rights of mutual contributions exist only among those who are co-securities — that is, sureties for the same thing, and bound for the discharge of the same duty, whether by the same or different instrument, at the same or different times, and with or without the knowledge of one another. Rosenbaum v. Goodman, 78 Va. 127, citing the principal case, and Stout v. Vause, 1 Rob. 179.

See further, monographic *note*on “Official Bonds” appended to Sangster v. Com., 17 Gratt. 124.

CARR, J.

I am of opinion that the chancellor was right in dissolving the injunction : whether he ought ever to have granted it, is a much more doubtful question. The doctrine of contribution between co-sureties, has been much discussed. It is clear, that if different persons are sureties for the same debt, or for the performance of the same duties, each will be made, in equity, to contribute, though they be bound by different bonds, and though they knew nothing, at the time, of the obligations of each other, But then, they must be sureties to the same extent, and for the same debt or duty. It is equally clear, that if there be one set of sureties bound for a debt, and then the obligee takes another bond, as collateral and supplemental security, these last obligors binding themselves to pay if the principal and sureties in the first bond fail, this bond will bind them no further than they have contracted. This is of the very essence of the contract; and the case of Craythorne v. Swinburne, 14 Ves. 160, is express to this point. Nor is the taking such second bond a fraud upon the obligors in the first: it does not increase their burden, or *any*way change their situation: they agreed each to execute the bond, and look to their principal and associates for safety. What is the case here? Wigginton applied to Lane to become his deputy, and stated that he could give certain sureties: Lane agreed to take the bond with those sureties: the bond was prepared with the six names in the body, Harrison’s last, and with six seals: it was executed by the other five, and in this situation, was presented to Harrison. Nothing was said to him of additional sureties; the very form of the bond shewed him that he was the last to execute it. He did execute it, and thereby bound himself jointly and severally with the others, to be liable for all defaults of the deputy. Notwithstanding this, I admit, that if another bond had been afterwards taken with other obligors, bound for the same thing and in the same manner, Harrison, on paying money for the deputy’s ^'delinquencies, would have had a right to call on these subsequent sureties for contribution. But, in the case before us, there is the most satisfactory proof, that the memorandum indorsed on. the second bond, shewing- that this bond was a supplemental security, formed a pari: of the agreement on which the bond was signed, and was executed at the same time. This memorandum is a part of the bond, as well as of the agreement, and must be taken as if incorporated with it. Even if there had been no memorandum, parol proof of the agreement (of which there is enough in the record) ought, I think, to have been received, and for this, the case before cited is express authority. I am clear, therefore, that the decree should be affirmed.

CABELL, J.

If the sureties in the second bond were bound for the same thing for which the sureties in the first bond were bound, they would be liable to contribution, although their engagement was made at a subsequent time, by a different instrument, and even without the knowledge of the first bond. But the memorandum indorsed on the second bond, is to be considered as a part of the bond itself; and the bond, thus modified, shews clearly, that they were bound for a different thing. They did not, like the sureties in the first bond, bind themselves absolutely, for all the acts of Wigginton, but for such only as the sureties in the first bond should fail to make good. This is proved also, by the parol testimony, which is admissible in a case like this. The sureties in the second bond were not, therefore, co-sureties with the sureties in the first, but were sureties for them. The doctrines of the law, on this point, are well explained in Craythorne v. Swinburne. The decree should be affirmed.

TUCKER, P.

The appellant asks, upon the facts set forth in his bill, relief against the sheriff, or a decree for contribution against the sureties in the second bond. If, as is alleged, the memorandum on that bond was executed at the time the bond itself was entered into, it is difficult to perceive upon *what principle the plaintiff can expect to charge the sureties therein bound. The doctrine of contribution, it is true, may extend to parties who are bound by different instruments, provided they are all sureties for the same person and the same thing. But it does not therefore follow, that, by the very terms of their engagement, the sureties in a separate bond may not make themselves responsible only sub modo, and place themselves out of the reach of the principle of contribution. “Whether,” says lord Eldon, “contribution depends upon a principle of equity, or is founded in contract, it is clear, a person may, by contract, take himself out of the reach of it” — “The question is, Whether the meaning of the instrument is, that the party will be a co-surety; or that the surety in the former instrument *162is to be considered a principal” — “If the party, not constituting himself co-surety, engages only to pay, if the creditor cannot get payment from the other sureties, he withdraws himself by his contract from the reach of the principle, and the plaintiff (the surety) cannot complain, as the transaction is without his knowledge, that the defendant (the supplemental surety) bound himself only to the extent he thought proper.” In a subsequent part of the same case, lord Eldon reiterates the remark, that whether the doctrine rests “upon contract or a principle of equity, it is clear, that a party may take care by his engagement that he shall be bound only to a certain extent. That is proved by the case of Swain v. Wall, 1 Rep. in Ch. 80, when the engagement being to pay in thirds, that contract was held to take them out of the principle that would have required a moiety, and also by the case of Deering v. The Earl of Winchelsea, 2 Bos. & Pull. 270, where it was admitted, that lord Winchelsea, though liable as a surety, had by contract withdrawn himself from a liability beyond ^4000;” his bond having been for that sum only, while the other bond was for ;£10,000. Lord Eldon proceeds — “If therefore by his contract a party may exempt himself from the liability, or from that extent of liability in which, without a special engagement, he would be involved, it seems to follow, that he may, by special engagement, contract *so as not to be liable in any degree. That leads to the true ground, the intention of the party to be bound, whether as a co-surety, or only if the other does not pay; that is, as surety for the surety, not as co-surety with him.” Pursuing these principles, and after having carefully considered the case in 2 Ereeman 97, which was cited by the counsel, and has also been relied upon here, and having found that case unsupported by the register, his lordship rejected the claim to contribution, which was set up by the plaintiff in the case of Craythorne v. Swinburne, 14 Ves. 160. That case is singularly strong in its application to the case at bar.

It is not necessary to go into a philological examination of the memorandum on the second bond. I am satisfied, that the object of it was to absolve the supplemental sureties, unless the high sheriff could not be able to get indemnity from the sureties in the first bond. *They*had a right to bind themselves, or to refuse to be bound altogether. They, had, therefore, a right to say how far they would be bound; and their obligation cannot be carried farther. It is obvious they designed only to guaranty the sufficiency of the former sureties, and they were thus (to use the language of lord Eldon) “not co-sureties with them, but in truth sureties for them.” The question, then, which it is most important to answer, refers itself to the execution of this memorandum. I shall only say, that I am satisfied it was contemporary with the execution of the bond. The nature of the transaction proves it; and so does the improbability that Dane would have signed it afterwards, when the obligors were in his power, if he declined to do so when they were not. The fact, that the bond with its indorsement was among the records of the court (for the copies are certified by the clerk) sustains the conclusion, and fortifies the presumption that this memorandum was made when the bond was executed. So we must take it, as the contrary has not been established by proper and adequate testimony. Upon the whole, I am satisfied there can be no pretence for charging the sureties in the second bond with any part of Wigginton’s defalcations.

*Then, as to the high sheriff: it cannot be denied, that Harrison executed the first bond without any fraudulent inducements held out to him by Lane; and I think it cannot be denied, that when the sheriff and Wigginton his deputy qualified, the bond was a valid bond as to Harrison. It had been executed by him absolutely, and without expectation or assurance that other sureties would join. His name was last, and he signed opposite to the only remaining seal; and it was more than a month after, that the second bond was executed. The bond then was once a good and valid bond. How then has Lane forfeited his rights under it? Did he forfeit them by taking additional security for his own protection? I apprehend not. The very doctrines we have been considering, shew that the creditor may take supplemental security, and security too that is onlv -to be responsible in the last resort. The case of Craythorne v. Swinburne was just that case. But no authority can be necessary to establish a principle so plain. It seemed to be supposed, that he ought not to have taken the supplemental security with the qualification contained in the memorandum. But, non constat that he could have got the supplemental security without it; and was he to forego the additional security altogether, merely because he could not prevail on the parties to be co-sureties with, instead of being mere guarantors for, the prior sureties? I think not. It was then said, that he fraudulently suppressed his knowledge of the insolvency of the first four sureties, and his want of confidence in Wigginton. There can be no fraudulent suppression, where there is no obligation to give information. Now, I take it that when a man joins with others in a bond, it is his business to look to the conduct of the principal and the solvency of the co-sureties: it is not the business of the creditor; and though it may be benevolent and kind in him to put his surety on his guard, I am yet to learn that it is a duty which the law imposes.

Upon the whole, I am well satisfied, that the case has been rightly decided, and that the decree should be affirmed.

Decree affirmed.