The weekly clarion. [volume] (Jackson, Miss.) 1863-1882, 1881-03-24
}. p. MATHEWS,

No. 1908.
r. w. MMLSAPs, EFT AL.
Appeal from the Chancery Court of Lin
coin County, Hon. ii. 5. Van Eaton,
Chancellor.
Millsaps, Hoskins Lowenthall and Ben>
nett were sureties on the bond of Moore as
sheriff Lowenthall and Bennett applied
to the board of supervisors to be released
in accordance with 3 BIC, Code 1871.
Moore appeared before the board with
Mathews, who in their presence signed the
bond as a new surety, the names of Lowen-
thalI and Bennett being erased. All parties
accepted this As a substitution of Matthews
on thes bond in lieu of Lowenthall and
Bennett.
Thereafter the sheriff made default. Suit
was brought on the bond, and it was decided
that, by reason of noncompliance with the
statute, the attempted substitution of sure.
ties amounted TO nothing-that Lowenthall
and Bennett were not released, and that
Mathews never became bound. See State y.
AltIc,ss 81 Miss, /.
Judgment was obtained against all the
parties except Mathews Millsaps and Low
enthall payed off the Judgment and brought
this bill against their cosmetics, including
Mathews, for contribution.
Mathews demurred, claiming, that mas.
much as he was never legally bound on the
bond, he could not be called upon to share
she burden of those who were.
CHALMERS, J.
Held
[. There can he no right in favor of sure
ties 10 call for contributions upon one who
is in no manner liable TO the creditor.
The duty Of contribution springs out Of q
common burden resting upon two or more
persons 1t need not exist by virtue of the
same instrument, nor Is 1t essential that
the party first bound shall have either privi-
" with, or knowledge of the liability of the
other, but the common liability must exist,
and the parties must occupy towards the
creditor exactly the same attitude. 1t is not
sufficient that the parties are all bound for
the debt if they are bound in different de-
grees and by independent relations. Thus
the right of contribution does not exist
between successive endorsers, nor in favor
Of or against guarantor.
Matthew's came under no liability TO the
State. and he never proposed to become a
co>surety with Lowenthall. The vain at
tempt was TO take the place of the latter
and release him altogether
As defendant was never bound to the
State. il is also clear that he was not the
co-surety of Millsaps. Neither of these
parties can call on him for contribution.
2 If Lewenthall is entitled to estop
Mathews from denying the validity of his
signature because lac. Lowenthall, was by
such signature induced to tobear prOsecu-
ton of his proceedings for a ielease, he Is
entitled to hold him as an indemnitoF--not
as co-surety. On this theory, the remedy
is not by bill in equity for contribution, but
by suit at law against Mathews for money
paid to his use, and this will embrace the
whole amount paid by Lowenthail, and not
merely a proportional part. As to the
result of such a suit, no opinion Is ex
pressed.
3. Millsaps was not party to the pro
seedlings for a substitution of sureties. he
has now the same associates with whom he
embarked. The proceeding before the board
was an idle thing to him. By it he Aeithe
lost the right of contribution as to the ole
sureties, nor acquired it as to the supposed
new one. Being in no way affected by the
action before the supervisors, he can not IN
woke the doctrine of estoppel on account o
such action.
Decree rersrsed, demurrer sustained and bSd
dismissed as to Matthews, a0ithosGt prejudice a
TO any legal rights Of Loaoe5athdH and Benmct
against him
WP. & ]. B. Harris, for appellants.
X. H. Thompson, contra.
To be reported.l