#### *Thomas A. Glenn*v. *D. Wallace et al.*

Columbia,

May, 1850.

It is well settled, that in cases involving the relative liabilities of sureties to several bonds for the same administration, they are all liable to the distributees of the estate. But, as between the sureties themselves, there is nothing to prevent the Court, when a surety applies for relief, to require a new security, which, as between themselves, shall be the primary one, leaving the former only collateral. Parol testimony is admissible in such cases to show the relative liabilities of the different sureties.

Where the question was as to the relative liabilities of the sureties to an original and a substituted administration bond, and the bill was filed by a surety who had been discharged by the Ordinary from the original bond, the Court rejected the testimony of a surety to both bonds, offered in behalf of his co-defendant, who was his co-surety only to the second bond, because it was evidently his interest either to make the first bondsmen, three in number, liable, rather than the second, who were two in number, or *to*make the bonds cumulative.

In this Court a plaintiff may examine a defendant who is not interested, or oA a matter in the cause in which he has no interest; and a defendant may examine a co-defendant in like manner. But a plaintiff cannot examine a co-plaintiff as a witness. If he would have his testimony, he must cause his name to be stricken out as a plaintiff, and make him a defendant. Nor can a defendant be allowed to examine a plaintiff; he must file a bill of discovery.- And it is *150always proper that a statement in writing should be submitted as to the points to which it is proposed to examine the party, in order that the Court may distinctly perceive whether he is or is not interested.

*Before*Dunkin, Ch., *at*Union, *June Sittings,*1849.

The following Circuit decree contains a full statement of the case:

Dunkikt, Ch. On the 4th of December, 1837, P. M. Huson gave bond to John J. Pratt, Esq., Ordinary of Union district, conditioned for the discharge of his duties, as administrator of Wm. Brummett, deceased. His sureties were Levi Rogers, T. A. Glenn, (the complainant) and H. D.. Yan Lew. In Í843, the complainant, becoming dissatisfied, applied to the Ordinary for relief, as provided by the Act of Assembly. J. J. Pratt, Esq., proved that the complainant had been speaking of proceeding to be released, and he applied to the witness, in his official capacity, to be released. P. M. Huson did not wish to be formally cited, and came forward and gave a new bond. When Huson first proposed to give the defendant, R. M. Lewis, as surety on the new bond, he (the witness) at first hesitated, as Lewis was young, and was then at Columbia ; but afterwards he concluded to take him, as he thought the parties to the new bond would be then sufficient. He at first spoke of requiring another security, but he finally concluded these were good for the amount, and he thinks so still; accordingly, when the parties came, he took the new bond with Rogers and Lewis as sureties, and entered the order discharging Glenn.

The new bond is signed by P. M. Huson, R. N. Lewis, and Levi Rogers, and bears date 18th November, 1843. The penalty and condition are the same as in that of the 4th December, 1837. The order made by the Ordinary, is as follows, viz:

“ 18th November, 1843. P. M. Huson, administrator of Wm. Brummet, deceased, appeared by consent and substituted an administration bond with R. N. Lewis and Levi Rogers as his securities, in the sum of seven thousand dollars, in the place of Thomas A. Glenn, who is one of his securities on the original bond for his administration on the estate of the said deceased, and who is about to leave the State, and is desirous of being discharged from any future liability on account of said securityship. It is therefore ordered, that the said R. N. Lewis and Levi Rogers be taken in the place of the said T. A. Glenn, and that he be so far released as may be consistent with the interest of the parties concerned, and not contrary to the law, in such case made and provided.”

(Signed) J. J. PRATT, *Ordinary,*

*151McMul. Eq.1 387.

Suit had been instituted in the Court of Common Pleas, on the bond of December, 1837, by the defendant, Daniel Wal-/ lace, as administrator of McMeekin, who was a distributee of Brummett, and judgment entered against the complainant, as well as the other parties to the bond.

. The bill insists that the judgment should be paid exclusively by the sureties to the bond of November, 1843. There is no reason to doubt the solvency of these sureties, and no question was discussed as to the ultimate responsibility of the complainant to the estate of Brummett. Indeed, after the judgment at law, it is not easy to conceive how such question could be made. The only inquiry, therefore, which the Court deems it necessary to institute and determine, is as.to the relative rights of the complainant, and the sureties to the new bond. In *Field*v. Pelot, Chancellor Harper said, “When it is the.surety himself who becomes dissatisfied with his responsibility, and seeks to be relieved, the Court cannot substitute a new surety so as to discharge the former from his contract. But there is nothing to forbid its requiring a new security, which as between the sureties themselves shall be the primary one, leaving the former only collateral, and such seems to be the nature of the new surety’s undertaking.” The Chancellor then shews an authority that parol testimony is admissible to shew the relative liabilities of the different sureties. “ The testimony,” says he, “of Mr. Grayson,” (the Commissioner who took the bond,) “ is express that the intention of the parties was, that John S. Field should be substituted in the place of Dr. Stoney, so as to discharge the latter.” He concludes: “The sureties may arrange their liabilities and priorities as they will. For reasons before given, Dr. Stoney could not be discharged from all responsibility, but the surety might well assume the primary liability.” I do not understand the soundness of these principles to be called in question by any member of the Court; on the contrary, Chancellor Johnston says, “ the authority cited is sufficient to shew that in such cases, parol testimony is admissible to explain the intention of the parties, which intention must always govern.” He afterwards says that when the application is made, a surety requesting that new security may. be given," the *cestui que trust*having expressed no dissatisfaction with the existing security, a question might possibly be made, whether the old surety was not discharged; “ but might it not be maintained,” says he, “ with more reason, that as between themselves, the new surety had assumed the primary responsibility in exoneration of the old *V’*

It is very difficult to affirm that in this case the intention of the parties is established only by parol proof. Mr. Pratt says that Huson, when he was called on by him, offered to put some notes, &c. in his hands as security; witness de* *152dined to receive them, but directed him to deposit them with the sureties; and Rogers afterwards mentioned that he had these notes to the amount of about $2200. But all the sureties may be said to be parties to the decree of the Ordinary of the 18th November, 1843. That decree recites that Levi Rogers and R. N. Lewis “ was to be substituted in the place of Thomas A. Glenn, who is one of the sureties on the original bond, and who is about to leave the State, and desirous of being discharged,” &c. *“*It was thereupon ordered, that said R. N. Lewis and Levi Rogers be taken in the place of the said T. A. Glenn,” &c. If the bonds were merely cumulative, why did Levi Rogers become a party to and execute the new bond *%*The intention, then, being clear, that intention, as was said in *Field*v. *Pelot,*must “always govern.”

But it was urged that, after the bond of November, 1843, was executed, Glenn, (the complainant) had expressed apprehensions as to his liability for Huson, and after the judgment was recovered in 1845, had told the sheriff that he expected he would be obliged to shoulder half the debt, or something to that effect. That might well be. Mr. Pratt testified that he had always, heretofore, stated that there was no such order made as that of the 18th November, 1843, but that he had discovered the order on a recent examination of the records of his office; that so soon as he made the discovery, he communicated the fact to the solicitors of the several parties. It was proved that in one of the trials at law, in which the complainant was sued, Mr. Pratt had been sworn as a witness, and had testified on the stand, as he now states he said, to wit: — that he had made no such order., I think this was in the suit of McMeekin’s children, for the complainant says he paid no attention to the suit by Wallace, for reasons which he states. But until he was able to produce the order of the 18th November, 1843, it was clearly the opinion of Judge O’Neall that he could make no case to sustain hi.s defence, and such may have been the reluctant conclusion of the complainant himself.

The Court is of opinion that the defendants, Levi Rogers and Robert N. Lewis, are primarily liable for the defalcations of their co-defendant, P. M. Huson, as administrator of Wm. Brummett, deceased. It is ordered and decreed, that it be referred to the Commissioner to examine and report what payments have been made on the judgment mentioned in the pleadings, and by whom; and that he also report the amount, if any, that is now due on the said judgment; with leave to the Commissioner to report any special ma'tter, pre-paialory to a final adjudication.

The defendant, R. N. Lewis, appealed,

1st. Because the Court rejected the testimony of the de^ *153fendant, Levi Rogers, who was offered as a witness on the part of the defendant, R. N. Lewis, to shew, that he was liable. The witness was indifferent, or called to swear against his interest.

2d. Because the defendant, Lewis, was only liable on his. bond for any future defalcation of P. M. Huson, the. administrator of Brummet. The liability to. commence from and after the date, of the bond, if liable at all.

3d, Because the bond of Lewis was only cumulative at most.

4th. Because, from the evidence and answers, it was clear that the bond of Lewis was no.t to be effectual or binding without another surety,

5th. Because the defendant, Lewis, was in no. event liable, for more than one-half of Glenn’s liability; and he was entitled to all the benefit of the funds received.by the defendant, Rogers, from the principal, Huso.n.

6th. Because the bill alleged and charged that the.defendant, Rogers, was only and ultimately liable; arid the. decree was, in’ other respects, contrary to equity and tíre evidence.

Herndon, for the motion.

*Dawkins,*contra.

*Curia, per*

Dunkin, Ch.

It may be. now, considered as well settled that, in cases of this character, whatever may be the rights of the classes of sureties *inter se,*they are *all*liable to the distributees of the estate. And this affords a very satisfactory answer to the argument, that the complainant, Glenn, is, concluded by the judgment at law. The suit was preferred at the instance of the distributees. The administration of his principal, Huson, had never been revoked. The Ordinary had no authority to discharge his liability, and his decree cautiously avoids any such inference.

But, as between, the sureties themselves, there is. nothing tp prevent the Court, as was said in *Field*v. *Pelot,*when the surety applies for relief, “to require a new security, which, as between the sureties themselves, shall be the primary one, leaving the former only collateral; and this (adds the Court) seems to be the nature of the new surety’s undertaking.”

It. was proposed, however, to prove by Levi Rogers, one of the defendants, and who was a surety on both bonds, that there was a different understanding or agreement among the parties as to their respective habilites. This witness was rejected by the Court as incompetent, and the ruling on this., point constitutes the first ground of appeal, Although, at law, no party to the record is competent to testify, the rule in this Court has always been different; and for obvious reasons. “A suit in Equity often contains many issues, and *154the general rule compels alt who are interested in any way t0 ma(je parties, either plaintiffs or defendants; it often that a person, who could furnish material evidence respecting one point in dispute, is precluded from doing so by being made a party in consequence of some interest in another point.”

Gresl. Evid. 242.

Paris v Hughe s, l5 Eng. C. C. R. 1; Miller v. McCaw, 7 Paige, 458.

Brown v. Chester, Jac. 577, (4 Eng C. C. R. ) 1 Prince Wins. 595.

To obviate this inconvenience, leave is frequently given, according to the English practice, for a party to be examined on motion, or on a petition filed, suggesting that he is not interested. “ The interest spoken of in the motion, is interest in the matter to be examined to, not interest generally in the cause.” The order is accordingly made, saving all just exceptions, which means, reserving all objections except the single one that he is a party to the cause. In this way, a plaintiff may examine a defendant who is not interestéd, or oa a matter in which he has no interest; and a defendant may examine a co-defendant in like manner. But a plaintiff cannot examine a co-plaintitf as a witness. If he would have his testimony, he must cause his name to be struck out as a pia'ntiü) and make him a defendant. Nor can a defendant be allowed to examine the plaintiff, but must file a bill 0f discovery. Such is the well established doctrine and practice of Westminster Hall, and our own does not differ from it, except that it has not been usual to obtain any special order, or to file a petition for leave to examine a party to the record as a witness. ' But it is always proper that a statement in writing should be submitted as to the points to which it is proposed to examine the party, in order that the Court may distinctly perceive whether he is or is not interested.

In this case, the Court have no difficulty. It was explicit-, ly announced that the purpose was to prove that the parties to the second bond were not to be primarily liable, or were only to be liable in proportion with the parties to the first bond. Rogers was surety on both bonds. But in the first bond, there were two sureties besides himself. In the second bond, Lewis alone was his co-surety. The interest of Rogers was to have as many as he could to share the burthen with him — in other words, to make the first bondsman liable where there were three sureties, or to make the bonds cumulative, when there would be four sureties to divide the loss. It is impossible, therefore, to say that he had no interest in the-matter touching which it was proposed to examine him. His interest was to multiply the number of sureties, to throw the burthen on both bonds rather *than on*either, and on the first bond rather than the second. It is no answer to say, that YanLew, one of the sureties on the first bond, was not in a pecuniary condition to aid in the discharge of the obligation. Who can affirm that he would never be in a condition *155to contribute his proportion ? The Court is of opinion that the witness was properly rejected.

The other grounds of appeal have been already sufficiently discussed. It is ordered that the decree be affirmed, and the appeal dismissed.

Johnston and Dargan, CC. concurred.

*Appeal dismissed.*