[Presént, Chancellors Rutiedge and James.']

NOVEMB. 1807.

#### Doughty, surviving Executor of Isaac Porcher, deceased, *vs.*Bacot and Seabrook, Executors of Peter Porcher, Representative of Joseph Porcher, deceased.

The circumstance of one obligor in a bond making- payments, and being resorted to by the creditor, raises a strong- presumption, that he was a principal in the bond; whilst the circumstance of another obligor not making payments, and not being called upon for them, raises a presump tipn that he was only surety in the bond.

A laches of many years in pursuing any legal demand against an obligor in a bond, will so far protect, that this court will not aid the creditor seeking relief, against the representatives of the deceased -'obligor, nor aid one obligor seeking to compel another to contribute.

THIS was a bill filed by the complainant, as the representative of a co-obligor in a very old bond, against the representatives of another co-obligor to oblige them to account for his estate, and compel the payment of a moiety of the debt, tbe balance of which had been paid by complainant.

The defence set up,was that the obligor Isaac Porcber, deceased, was a principal in the bond, and that Joseph Porcher was merely a surety, and therefore not bound to contribute. But that if the evidence should not make out that case, the laches in pursuing the demand' was so enormous that the complainant ought not now to be assisted in compelling the defendant to contribute to the payment of the bond.

The bill stated that on the 22d April, 1756, Benj. Singleton, I. Porcher and J. Porcher, did by théir bond duly executed, -become bound, B. Singleton as principal, and' Isaac Porcher and Joseph Porcher as sureties unto Alexander Perronneau, deceased, in a penal bond, conditioned for the payment of 1200/, with interest thereon. That Benjamin Singleton paid the interest annually, until 1768, when he died, not leaving a sufficient estate pay to his *547debts. That Isaac Porcher paid the annual interest on said bond, front Singleton’s death until 22d. April, 1778, • • That owing to hi? death, and the revolutionary ^roubles, no payments were required, until within a few years past; , . , , , . , ’ , when a suit was brought, and judgment was entered up against the complainant on 'the 11th February, 1804, That complainant hath been compelled to pay the principal, interest and costs. That Joseph Porcher, the co-surety, died in the year 1770, without having paid any sum toward said bond. > That said Joseph Porcher left a considerable estate which went ultimately under the provisions of his will to his sole surviving son, Peter Porcher.

That said Peter Porcher died intestate in the year 1793, leaving a widow and *children;*and letters ,of administration were granted to his widow, and to Thomas W. Ba-cot, and Thomas Seabrook; and that she dying shortly af~ tér, the management of said estate continued in the hands of the other administrators; and that complainant hath applied to them to contribute one moiety of the sum paid by him. But the said administrators have totally refused so to do. Complainant prays for relief in the premises.

The defendants in their joint answer admit the facts generally as stated in the bill, but they deny that Isaac Porcher was surety in the bond; he being a principal therein, and Joseph Porcher alone a surety.

Defendants admit that they have refused to contribute towards the payment of the aforesaid bond, because Isaac Porcher being a co-principal, was liable to pay said bond, and their intestate, Peter Porcher being a surety, ought not to contribute to the payment thereof; and they relied on the great lapse of time.

The case came to a hearing, and it appeared that the bond was dated the 22d. April, 1756, and was executed by Benjamin Singleton, Isaac Porcher and Joseph Por-cher. None of the obligors were distinguished on the face of the bond as sureties.

*548There were many receipts on the bond, for various payments made on the debt, down to the year 1768, by B. ‘ó. . • ■ ' • ' ’ ■ Singleton

There were other receipts endorsed on the bond for payments made by Isaac Porcher, in the years 1768, 9, 1771, 2, to Mr. Webb, in whose hands the bond then was.

There were payments receipted on the bond, in the years 1773,1774,1775 and 1777, to Mr. Webb, which dq not specify by whom the payments were made 5 but Jo» seph Porcher was then dead. And one payment in July, 1778, is receipted, as made by Isaac Porcher.

It appeared by a certificate from the oifice, that Benjamin Singleton, the obligor, died in the year 1776.

Mr. Webb testified that to the best of his recollection, he never received any payments on the bond from any of the obligors, but Isaac Porcher, who he believes made the payments voluntarily. He never spolce to Joseph Porcher, on the subject, though he lived five years after the bond came into his hands. Isaac Porcher-died in the year 1781. He never afterwards applied to the executor of Isaac Porcher for payment of the balance, till he found he could not get payments from the estate of Benjamin Singleton.

Mr. Henry Bailey testified, that a suit was brought bjf Mr. Holmes in the year, 1788, against Benjamin' Singleton, junior, on the bond of his father, and'an order for judgment was obtained.' But it was not then entered up. In 1791, a judgment was obtained and entered up against' Benjamin Smith, surviving executor of B. Singleton, sen. afterwards he brought suit for a devastavit against the executor of the executor. Judgment in 1798.

The bond was then assigned, and an action brought against the executor of Isaac Porcher, and judgment ©btained.

Mr. Turnbull, for complainant,

argued that the oblige ors were all principals.-~There was no evidence of any *549suretyship. That the payments kept the bond alive, till *1778.*Then the war stopped the operation of the statute of limitations; and the statute was suspended by acts of the legislature, till 1791 or 2. Since which, suits have been brought, and there has not been • time enough to bar the demand, for bonds are only barrable by presumption of payment by a long lapse of time; most of the cases say 2Q years. This was not the case here, from the time the statute of limitations resumed its operation: the presumptive bars >vere estopped as well as those arising from positive statute.

Mr. W. L. Smjth for defendants,

insisted, that the voluntary payments made by I. Porcher, and the recurrence to him by the creditor, shewed that he was a principal.. Whilst the non payment by Joseph Porcher, and the nop recurrence to him by the creditors, shewed that he was a mere surety. But that at all events the laches as to Joseph porcher, raised a compleat bar to the demand.

Chancellor J ames

delivered the decree of the court.

The complainant in this case has brought his bill to recover of the defendants, as surviving administrators of Joseph Porcher, a certain sum of money, amounting to about 175/. being the one half of a. sum which he has paid upon, a judgment obtained against him as executor aforesaid, upon a bond of Benjamin Singleton, Isaac Porcher, and Joseph Porcher, to Alexander Perronneau, dated 22d April, 1756; in which bond complainant alleges that the said Joseph Porcher was co-surety with his testator, and liable to pay his proportion of the same.

Defendants allege that Joseph Porcher was not a co-surety with the complainant’s testator, but that he and Benjamin Singleton were principals, and Joseph Porcher, surejy to them both; they also allege laches in the complainant, and plead to the equitable jurisdiction.

The court will take up first, the question as to the jurisdiction! and on this, it appears that both the executors, *550and one of the heirs of Joseph Porcher died soon after him; in consequence of which, his estate was delivered up to, ^ie surviving heir, viz. Peter Porcher, who also died in. the year 1793, and the present defendants are his adminis- . tratois. ■

The estate then having past from executors to an heir, and again from an heir to administrators, the chain of le-.-gal representation has been thus broken, so that a single action at law could not have been brought to include all the representatives. This point being disposed of, we will' next consider, 1st. Whether Joseph Porchér has been proved a co-surety? And 2dly, the-ground of laches. Upon the first ground, the complainant’s counsel urges that Benjamin Singleton signed his name first to the bond, and therefore the presumption is, that he was principal, and the other two obligors sureties; but this is not con-elusive ; the bond is joint and several, and neither of the obligors have signed their names, with the addition of the word surety. It might have been given for a joint debt, or regard might not have been paid to the order in which the principals and sureties placed their names. But the evidence, so far as it'goes, seems to prove that the two first obligors were the principals, and the last only a surer ty, for the first payments were made by Benjamin Singleton, viz. from the 18th of June, 1757, until the 6th of February, 1765, inclusive; and probably though his name is not mentioned in the receipt, the payment of the 6th of February, 1765, was made by him. After this, we find that while Benjamin Singleton is still alive, for he did not die till 1776 or 1777, and while he is solvent, Isaac Por-cher comes forward of his own accord, and without any previous application from Mr. Webb, who then held the bond, makes several other payments upon it from the 16th February, 1768, until the 10th May, 1775, inclusive : for v/e think those receipts in 1773, and 1774, wherein the name of the payer is not mentioned, must be set down to him, since both the prior and subsequent receipts were so given. But again, after the death of Éenjamin Singleton, *551on the 24th of October, 1777, and on tbe 20th of July", 1778, payments were made by Isaac Porchér, and that still voluntarily, and without complaining that he' was only surety to the *bond;*and during this whole period, without once calling upon Benjamin Singleton, or his representatives, or upon Joseph Porcher, (who died in the year 1770) or his representatives, to contribute their proportion of the bond, although it is not pretended that either they or their estates were insolvent; A strong presumption must arise from all this acquiescence in paying, that Isaac Porcher considered himself under some moral obligation to pay, greater than that by which mere sureties usually conceive themselves to be bound.

Next, as to the ground of laches. It appears that Isaac Porcher died in 1781, and after his death, as Mr. Webb, the then holder of the bond,- was on terms of intimacy with his executor, the present complainant, he did npt apply to him for any further payment; but in the first instance he called on . the executor of Benjamin Singleton, then deceased, and not receiving payment from him, he next applied to Benjamin-Singleton, the younger, who was heir of Benjamin Singleton, the obligor: but even then the heir was suffered to go on wasting the estate of his father, and no suit was instituted until the year 1788, a period of 12 years from the death of the father, and of five years after the *peace;*and when judgment was obtained upon this suit, it was not entered up. Then another suit was brought against Benj. Smith, surviving executor of Benjamin Singleton, the elder, and judgment obtained in 1791 *;*and afterwards a third suit was brought against the same executor for a devastavit, and a judgment obtained; but that was suffered to lie open for a long time,.until in 1798, the execution upon it was returned *nulla bona.*Thus another period of ten years elapses, making in the whole 22 years, and neither the estate of Isaac Porcher, nor of Joseph Porcher is called upon. But at length in the year 1803, a suit is brought against the complainant as executor of Isaac Porcher, and' *552judgment is obtained and entered up on the 11th February,-*1804;*so that from the time the last payment of Isaac Por-cher of the 20th July, 1778 was made, until a suit was instituted against his executor upon this bond, a period of 26 years had passed away. Upon the whole of this case, and of the evidence which has been offered, from the great length of time which has elapsed since the bond was given, being fifty years *;*also, from the very singular circumstance, that no application- ever was made- by the original obligee,and those claiming under him, to Joseph Porcher, in his life time, orto his representatives after.his death, it appears that Joseph Porcher- ought not to be considered as a co-surety with Isaac Porcher, but merely a Surety to the bond. Therefore under all the above considerations, arising from the evidence, and from the great laches of the original holders of the bond, and also of the complainant, the court are of opinion that the complainant is not entitled to relief, and that the bill must be dismissed with costs.