#### *Baxter v. Moore.

April, 1834,

Richmond.

Chancery Jurisdiction-Relief for Surety against Principal — Case at Bar. — B. being- indebted to D. and J. being indebted to B., thereupon J. and B. and three others, of whom M. was one, join in a bond for the debt to D. — it appears, that M. executed the bond at B.’s request and as surety for him ; D. brings suit on the bond, and in the event recovers the whole debt from M. Held, M. is entitled to recover the whole amount by him paid from B. he being as to M. the principal debtor ; and his case is relievable in equity.

Depositions — Competency of Witness — Objection First Made on Appeal.* — Depositions of witnesses read at the hearing of a suit in equity, without objection, cannot be objected toon the ground of incompetency of the witnesses, in the court of appeals, on the hearing of an appeal from the decree.

Isaac Moore exhibited a bill against John Baxter, in the superiour court of chancery of Greenbrier, alleging that in two bonds executed by John Irvin, Robert Duffield, Moore the plaintiff, Baxter the defendant, and Robert Given, to James Dunlap, Moore was in fact a surety for Baxter: that Baxter being indebted to Dunlap, and Irvin indebted to Baxter, and Baxter wishing to apply the debt which Irvin owed him to the payment of the debt he owed Dunlap, and Dunlap being willing to take the debt due from Irvin, provided it should be well secured, Baxter thereupon solicited Duffield, Given, and the plaintiff Moore, to join Irvin and Baxter in the two bonds to Dunlap; and they, at Baxter’s request, and as sureties for him, joined in the bonds accordingly: that Irvin had lately died in very embarrassed circumstances: and that Dunlap had recently recovered judgments on the two bonds executed to him, and the plaintiff Moore had thereupon been compelled to pay 672 dollars; but Baxter now insisted, that Moore was a co-surety in the bonds with Duffield, Given and himself, for Irvin, and refused to reimburse to Moore the 672 dollars so paid by him. Therefore, the bill prayed a decree against Baxter for the money.

Baxter, in his answer, admitted that he was indebted to Dunlap, and Irvin indebted to him, and that the design of *the arrangement was, that Irvin should stand paymaster to Dunlap, so that Irvin should be discharged from Baxter’s claim, and Baxter from Dunlap’s; but he said, that as it was Irvin who owed the debt, so it was Irvin who undertook to find sureties to Dunlap for the same; and that the plaintiff Moore and himself, with Duffield and Given, joined in the bonds as Irvin’s sureties. Therefore, he insisted, that Irvin, the principal debtor, was bound,in the first place, to make remuneration to Moore; and if Irvin’s estate was insufficient, then Moore was only entitled to contribution from Duffield, Given and the defendant, as his co-sureties.

*91The plaintiff proved his case as stated in the bill; but part of his proof consisted in the depositions of Duffield and Given his co-sureties, which were read at the hearing of the cause, without any objection made on the part of Baxter,

The chancellor gave Moore a decree against Baxter, for 721 dollars (which appeared to be the amount of the judgments recovered by Dunlap, principal, interest and costs) with interest &c. though there was no proof that Moore had paid more than the sum claimed in his bill, namely 672 dollars. And, upon the petition of Baxter, this court allowed him an appeal from the decree.

Johnson, for the appellant,

objected, 1. That supposing Moore’s case well proved, and that he had a just claim against Baxter alone, then he had a plain and complete remedy at law, and therefore the court of chancery had no jurisdiction to relieve him. 2. That, at any rate, Irvin was certainly the principal debtor, and therefore his representatives ought to have been made parties. 3. That Moore’s case was not well proved ; for that the depositions of Duffield and Given .were not competent evidence for Moore, since the effect thereof was to discharge themselves from the duty of contributing, as co-sureties, their portions of the debt, by throwing the whole burden on Baxter. And 4. That the decree was for more than Moore had paid, and more than he claimed in his bill.

*Stanard, for the appellee,

answered, 1. That a surety, having been coerced by legal process to pay the debt, had a clear right to the aid of a court of equity to compel remuneration from his principal, or contribution from his co-sureties; Cabell’s ex’ors v. Wigginson’s adm’rs, 6 Munf. 202; Kemp v. Prior, 7 Ves. 237, 249. 2. That, supposing the case stated in the bill made good by the proofs, Irvin’s representatives were not necessary parties; because, as between Baxter on the one part, and Moore, Duffield and Given, on the other, Baxter was the principal debtor, and the other three were his sureties. 3. That Duffield and Given were competent witnesses; for if Baxter should bring a suit against them to compel them to make contribution as his co-sureties, the record and decree in this suit would not be competent evidence for or against them. Besides, he said, the objection came too late here: no objection was made to the reading of the depositions at the hearing in the court of chancery: if the objection had been made there, it might have been obviated, or the evidence of these witnesses might have been supplied by that of others.

*

Depositions — Competency of Witness — Objection First Made on Appeal. — See, citing principal case, *note*by judge appended to Simmons v. Simmons, 33 Gratt. 460; *foot-note*to Burkholder v. Ludlam, 30 Gratt. 255; monographic *note*on “Depositions” appended to Field v. Brown, 24 Gratt. 74.

CARR, J.

The justice of this case is very clear. The bonds in which Moore was bound as surety, were entered into for a debt due from Baxter to Dunlap, and Moore was induced to join in the bonds, by the request of Baxter that he would become his surety. This is surely enough, as between them, to constitute the relation of principal and surety. The objection to the jurisdiction is not sound. Nor can the exception to the competency of the evidence of Duffield and Given prevail, considering that that exception is taken in this court for the first time. We are to rejudge the decree of the 'court of chancery: it was not error to read the depositions at the hearing there, when there was no exception taken to the evidence; and if it was not error then, it can hardly be error now. The decree, however, is erroneous in the amount decreed: it should have been for 672 dollars (the sum paid by Moore, and claimed in his bill) with interest &c. instead of 721 dollars. The decree is to be reversed for this cause alone, and corrected.