#### *William McKenna vs. Susannah*George, *administratrix of David George, deceased.*

Where one of several sureties to a joint obligation pays the debt, he has the same right to contribution from the representatives of a deceased co-surety, as from a surviving co-surety.

A surety who has left the State is in the same condition as if he were insolvent, and the solvent sureties, or their representatives, who remain within the jurisdiction, are liable to contribute in equal proportions. Where, therefore, of six sureties to a sheriff’s bond, three left the State, and of the three who remained two died, and the survivor was compelled to pay a considerable sum on the bond; *held,*that he might compel the representatives of the other two, who remained, to contribute each one third.

A surety may, before he has paid the debt, file a bill against his co-surety to compel him to contribute towards its payment.

To a bill for contribution, co-sureties who have removed beyond the jurisdiction of the court need not be made parties.

To a bill to compel co-sureties to contribute towards the payment of a judgment-recovered against the plaintiff, the judgment creditor should, it seems, be made -a party.

Where the only surviving surety to a joint bond, (he being alone subject to an action at law,) issued, and defends the action *bona fide,*and thereby reduces the amount of the creditor’s demand, the representatives of the deceased co-sureties are liable to contribute towards payment of the costs and other expenses incurred in defending the action at law.

Where a surety filed two separate bills against the representatives of his deceased co-sureties for contribution, he was ordered to pay the costs of one of them.

*Before*Johnson, Ch. *at Lancaster,*

*June,*1843.

*The Chancellor.*In 1833, John Sims was elected sheriff of Lancaster district, and the complainant, and David George, the defendant’s intestate, John McKenzie, Samuel F. Dunlap, Amasa Howard and William Williams,-became jointly bound with him in a bond in the penal sum of $12,000, conditioned for the faithful discharge of the duties of his office; and the bill states that during his continuation in office, Sims received large sums of money in his official capacity, belonging to divers persons therein named, which he neglected to pay over to the persons entitled, and in the end became insolvent and removed to Mississippi, immediately after the expiration of his term of office, and still resides there. That Amasa Howard and John McKenzie, two of the sureties, *16have removed from without the limits of the State, to parts unknown, and are supposed to be in embarrassed and doubtful circumstances. That in 184-, Catharine Blair, the administratrix of James Blair, commenced actions at law against complainant, William Williams and David George, to recover moneys received by the said John Sims, in his official capacity', on account of her intestate, which he neglected to pay, (their remaining co-surety Samuel F. Dunlap having before departed this life;) that the action against the said David George abated by his death, and at the fall term of the court of common pleas, the said Catherine Blair recovered judgments against the complainant and William Williams for a considerable sum, the amount of which is exhibited with the bill, but that pending the said actions the said William Williams removed to parts unknown to complainant; and that an execution was sued out on the. said judgment, which complainant has been obliged to pay, as the only surety remaining alive within the State. The bill further states that actions at law were commenced against the complainant, William Williams and David George, to recover monies received by the said John Sims in his official capacity, on account of B. H. Saunders, T. *&*M. Parish, McClellan Williams, and others, which he appropriated to his own use, and neglected to pay over; these actions abated as to David George, as in the case before stated, and at the fall term of the common pleas, 1842, judgments were recovered against the complainant and the said William Williams for large sums of money, for which executions have been sued out and lodged in the sheriff’s office, and complainant being the only party defendant resident in the State, his property is liable to be taken in execution, and sold, in satisfaction thereof. That besides the taxed costs to which he was subjected, in consequence of the recoveries against him in the case before alluded to, the complainant expended considerable sums of money in employing counsel to defend the said actions, and particularly in successfully defending a suit brought against him by one Clarke, on the same bond, for a supposed defalcation of the said John Sims, in not paying money which he had received on his account.

The bill further states that the estate of the said David George, in the hands of the defendant, his administratrix, is abundantly solvent, and also that of the estate of Samuel G. Dunlap ; and as all the other securities reside without the jurisdiction of the Court, it is insisted that the defendant is bound to contribute in *17the proportion of one-third, to the payment of all the moneys recovered against the complainant, in the actions at law before referred to, including the taxed costs, and to the payment of the moneys expended by complainant in defending the said actions, and particularly in successfully defending that at the instance of the said Clarke.

The defendant states in her answer, that she is not the ad-ministratrix of David George, as stated in the bill, but that by his last will he appointed her sole executrix, and that she has assumed the execution thereof, and that his estate is inconsiderable in amount, and greatly embarrassed. She denies all personal knowledge of most or all of the material allegations of the bill, and requires proof. In the event of these being established she insists—

1st. That the surviving sureties alone are bound to contribute towards the payment of the sums recovered against the complainant.

2nd. That as there were six sureties to the bond, in any event the estate of her testator is only liable to contribute in the proportion-of one-sixth, and that complainant must pursue the other co-sureties to recover the' balance.

3d. That the complainant is not entitled to contribution on account of the taxed costs recovered against him, nor for the moneys expended by him in defending the suits, particularly in the case at the instance of Clarke.

4th. That all the co-sureties now alive, and the legal representatives of those that are dead, and all the official creditors of -Sims, as well *those*that have sued as those who have demands against him, ought to have been made parties.

1. There is certainly nothing in the first ground of this de-fence. The liability of co-sureties to contribute equally to the payment of the debt of their principal, when he is unable to pay it, is not founded on contract, but on the general principles of equity. If several engage in any enterprise or undertaking, without stipulating as to what eaeh is to gain in the event of success, or lose in the event of failure, it is but equitable and just that they should share the profit or loss equally, and the principle applies with full force to the case of co-sureties — their undertaking that their principal shall do or perform what the contract imposes on him, is, as between themselves, joint, and if he fails they must contribute equally in aid of each other. The principle is strongly illustrated in *Harris vs. Ferguson, 2*Bail. 400, in *18which the sureties to several different bonds, given with a view to the same common object, were held bound to contribute equally to satisfy the defalcation, although the contracts were without concert or agreement between them; and the idea that the death of a party discharges his liabilities, whether legal or equitable, is altogether novel and unfounded. 2. Nor do I think the second ground of defence has a better foundation. That proposes that the defendant should be held liable to contribute only in proportion to the whole number of sureties, that is to say, one-sixth part, and that complainant should be left to pursue the other co-sureties, who have removed without the State, and without the jurisdiction of the Court, leaving him to incur the delay, the trouble and expense, of prosecuting suits under such circumstances, and abide the risk of their solvency. Is this equality of bur-then, within' the principle laid down ? clearly not. The defendant must share them. B. I at first entertained some doubts about the liability of the defendant to contribute to the payment of the costs, taxed against complainant, in the suits recovered against him, but on more reflection I am satisfied he is entitled to it — as between the sureties, all were bound to contribute equally upon demand made, and the defendant’s intestate was made a party defendant in several of the suits brought, and if he had paid his proportion of the demands, the complainant would have been left to defend himself as he might, and upon his own responsibility, nor could he have discharged himself from his liability to the plaintiff without paying, not only what he was equitably bound to pay, but all that his co-sureties were bound for; and unless he had done so, costs were inevitable, and must be regarded as a common burthen.

The same principle applies, I think, to *the*expenses incurred in defending the suits. If the complainant, knowing that the demands were just, and that his co-sureties and himself were bound to pay them, had voluntarily incurred expenses, in unnecessarily defending the suits, he would have been without remedy — but from their nature it cannot be supposed that he was fully aware of the *bonafides*and amounts of these demands, and he owed it to himself and to his co-sureties to see that they were established according to the principles of law ; and that he could not do without incurring the expense of employing counsel. It must have been done in good faith, for no one would voluntarily part with his money, with the expectation of recovering only a portion of it back from others. It must have been intended for the com*19mon benefit, and must be borne equally. The costs incurred in defending the suit at the instance of Clarke, stands upon a different *footing.*The result of that suit shows that it was vexatious and unfounded — surely there is nothing in the nature of the relations between the complainant and his co-sureties, which imposes on them any obligation, legal or equitable, to contribute towards the expenses of every groundless suit that might be brought against him, under the pretence that he was liable on the bond in which they are jointly bound ; nor would the recovery in his favor be any protection to them from similar suits at the instance of the same parties — this, therefore, is a burthen which he must bear himself.

It is objected in the answer, and was, I suppose, intended as a substitute for a formal demurrer, that all the sureties that are alive, and the representatives of those that are dead, ought to have been made parties — and also all persons having demands against them.

The general rule is, that all persons materially interested in the subject, ought to be parties, but it. is said by Lord Eldon in *Coclcburn vs.*Thomson, 16 Ves. 325, that the rule was established for the convenient administration of justice, and must not be adhered to in cases to which, consistently with practical convenience, it is inapplicable.

All the sureties that are alive live without the jurisdiction of the Court, except the complainant, and in respect to them it is enough that it was impracticable to make them parties in Court. There are cases in which persons not within the jurisdiction of the Court may be made parties, and will be bound by the judgment of the Court. That is effected by the publication of a rule to plead — but that is applicable only to cases in which the thing, the subject matter of the suit,- is within the power and jurisdiction of the Court. In this case, therefore, the Court could give no judgment which would in any way conclude or affect the interest of the absent sureties, nor is there any process by which they could be made parties. The rule is not so absurd as to require impossibilities to be performed.

G. Me. Witherspoon, who represents the estate of Samuel F. Dunlap, might and ought to have been made a party to this bill— but he is before the Court on a separate bill for the same cause, and the judgment of the Court in that case will be found appended to the decree. Being in Court on the same case would be a sufficient answer to a demurrer because he was not made a *20party to this bill. The proper course would have been to move to consolidate the two cases, to save the expenses of one, if the defendant desired it.

It is said that all others who may have claims under this bond ought to have been made parties. It is not suggested, either in the bill or the answer, nor was it at the bar, that there were any others, and if there be now, it would have been idle to have framed the bill with a view to that object. If the defendant apprehends that there are others, she might have taken the necessary steps to bring them in with the same facility as the complainant.

Something was said in the argument against the propriety of the complainant calling on the defendant for contribution, until he had actually paid the money. It is not difficult to conceive of a case in which it might prove ruinous to one of several co-sureties, if he was obliged to pay the whole debt before he could call on his fellows for contribution. The last article of his property might have been sold and his body taken in execution, and I dont know how the Court would go about to equalize these burthens. The rule is otherwise — he has a right to contribution as soon as the amount of the debt is ascertained, and he is put in danger — that is the rule as between sureties and principal, *\Taylor vs. Heriot,*4 Des. 227,] and the reason of it applies with equal force to the case of co-sureties.

It is therefore ordered and decreed, that the commissioner do ascertain and report how much has been recovered against the complainant in the actions mentioned in the pleadings, distinguishing between the principal debt and interest, and the taxed costs, and also the amount expended by the defendant in defending the said actions.

No order will be made in relation to the costs of this suit until the coming in of the report.

*William McKenna vs. George Me*Witherspoon, guardian, &c.

*The Chancellor.*On the death of Samuel F. Dunlap, one of the sureties to the official bond of John Sims, mentioned in the preceding cause, administration of his estate was granted to James H. Witherspoon — he, Samuel F. Dunlap, died, leaving an infant and only child, Jane Dunlap, his sole heir, and the defendant admits in his answer that he has been regularly appointed the guardian of her person and estate, and that the administra*21tor has paid and transferred to Him the whole estate of his intestate for the use of his ward. •• :•;

The object of the bill is to ..charge the estate of Samuel F. Dunlap with a contribution in the proportion of one-third towards the sums recovered against the complainant in the suits referred to in the preceding case.' All the material allegations in. this bill are the same as in that case, and the defences relied on in the answer are substantially the same, with the addition that in this case the defendant, to avoid litigation, offered to pay complainant one-sixth part of the principal sums and interest recovered against him, which he refused to accept, and he admits that he was aware that suits were pending against complainant on • the bond.

The'cases being the same, the commissioner will also report on this case, and in making up, he will pursue the direction of the order of reference made in the case of McKenna vs. George..

The defendants appealed, on the following grounds :

1. Because, it is submitted, the complainant and the other surviving co-obligors are exclusively liable for the default of their principal ; and, at all events, to the extent of their aliquot portion of the bond.

• 2. Because defendants are only liable for the one-sixth of the recoveries against the complainant, there being no evidence of the insolvency of the other co-obligors; and not for this proportion till paid by complainant.

3. Because the bill should have been dismissed for want of proper parties; the surviving co-obligors and the representatives of those deceased ought to have been made parties.

4. Because defendants can in no event, in equity, be made liable for any proportion of the costs, of the recoveries against complainant, or the fees he may have expended in defending the actions against him. .

5. Because filing separate bills against defendants is vexatious, and complainant should be made to pay costs.

*Wright,*for the appellants.

Clinton, contra.

Curia, *per*Dunkin, Oh.

The second and fourth grounds of appeal may render it proper -to say something in explanation of the decree, or, rather, to state the reasons which induce the court to concur generally in the conclusions of the Chancellor.

In *Hole vs.*Harrison, 1 Ch. Cas. 246, it is said that “if three *22are bound in a recognisance, one is sued and paid the whole, another is insolvent, the third is sued for contribution, he shall contribute a moiety and not a third part.” For the purposes of the case, a co-obligor, beyond the jurisdiction of the Court, is in the same condition as if he were insolvent. Neither he, nor his estate, can be subjected to contribution. In the statement of *Hole vs.*Harrison, it is said that “ S. was runaway,” and the decree is, that *Hole*should contribute a moiety — “ for S. is insolvent.”

But it is urged that the defendant is not liable to contribute until the complainant has actually paid the debt. If the decree had directed any amount to be paid, by- the defendant, to the complainant, there would be force in the objection. But no such order has yet been made. It is a misapprehension, however, to suppose that a co-surety may not file his bill for contribution, until he has actually paid his money. The authorities cited do not sustain this proposition. In 1 Eq. Cas. Abr. 114, it is said “ one surety may compel another, in equity, to contribute towards payment of a debt for which they were jointly bound.” In *Deering vs. Earl of*Winchelsea, 1 Cox, 318, (a) Sir Edward Deering, being joint surety with the Earl of Winchelsea and Sir John Rous, for Thomas Deering, in bonds to the crown, was sued, and “judgment was obtained against him for £3,883 14s. ; whereupon Sir Edward Deering filed this bill against the Earl of Winchelsea and Sir John Rous, claiming from them a contribution towards the sum so recovered against him.” There were several grounds of defence which it is not important to notice. It was held that each of the defendants should contribute in equal shares with the complainant to the payment of the judgment; and that, “on payment thereof the Attorney General should acknowledge satisfaction, on the record, of the said judgment,” and that the bonds should be delivered up to be can-celled.

The decree of the circuit court directs only that the commissioner should ascertain the amount which has been recovered against the complainant, and report thereon. We *think*the judgment creditors should be made parties,, and that the complainant should have leave to amend his bill for that purpose or to give them notice.

Then, as to the fourth ground of appeal; the complainant was *23alone subject to an action at law. If, in making the defence, he .has removed a common burthen: if, for instance, the amount demanded from the sureties was five thousand dollars, which he reduced to two thousand dollars,"(as was stated in the argument,) he is entitled to reimbursement of his expenses, on acknowledged principles of equity as applicable to co-sureties. This, we think, is a proper subject of inquiry before the commissioner, and that the order of reference should be enlarged with that view; and it is so decreed.

The complainant must pay the costs of the suit against G. Me. Witherspoon.

In all other respects the decrees of the circuit court are affirmed.

JOHNSON and Johnston, GO. concurred.

Harper, Ch. absent.

(a)

*8.*C. 2 Bos. & Pul. 270.