The comet. [volume] (Jackson, Miss.) 1877-1882, 1881-03-19
j. T.. MATTHEWS
VS..


X. W. MILLsAPs ct al.
Appeal from Chancery Court Lincoln
county Hon, II. S. Van Eaton, Chancellor
Millsaps, Hoskins, Lowenthal and Ben
nett, were sureties on the official bond Of
J. ID. Moore, sheriff OF Lincoln county
Lowenthal and Bennett applied to the
Board of Supervisors to be released from
their suretyship in accordance with the
provision Of $40, Code Of 1871. The sher.
IN, being notified Of this, brought before
the Board J. z. Matthews, who, with the
consent and in the presence OF the Board,
affixed his name TO the bond and there
upon the names Of Lowenthal and Bennett
were effaced from 1t by lines Of red ink
traced over them. This was acquiesced to
by all parties, and was accepted as q sub
stitution Of Matthews as surety, in lieu
Of said Lowenthal and Bennett. TIE sheriff
having made default and suit having been
instituted on the bond, 1t was held by this
court that the attempted substitution Of
sureties failed Of its intended effect IA con-
suquence Of noncompliance with the stat
ute, and that Lowenthal and Bepuet, were
bound a. surety on the bond.-Stste W..
Matthews, 81 Miss. 1. After this decision,
the case progressed, resulting In final
judgement against all the sureties inclnd-
ing Lowenthal and Bennett, but not includ-
ing Matthews. This judgement was paid
by Millsaps and Lowenthal. These two
now file this bill against their cosmetics
defendant. Matthew'S demurred aud upon
its beng overruled he appeals.
W.. Pa J. B Harris for appellant.
n. II. Thompson for appellees.
CHALMERS, c. j.,
Hold
1. The duty Of contribution on the one
hand, and the right 10 demand II on
the other, springs out Of common burden
resting upon two or more persons, occupy
ing towards the creditor . like position.
In the case at bar Matthew'S came under
no liability 70 the obligee in the bond,
and never intended TO become q CO.
surety with complainant, Lowenthal,
but made vain attempt 10 substitute HIM
self for Lowenthsl, and thereby TO release
him. He cannot therefore be liable TO
Lowenthsl a. eo-surity OF co-obligor. IL Is
manifest that he cannot be called upon BY
Lowenthal Tor contribution IL 10 equally
apparent that hiIlsaps 10 not entitled 70
demand contribution Of him, because he
was never bound 10 the State, and conse-
quently no securely with Milskps.
4. The result II the same, 30 far ~ this suit
II concerned, upon the doctrine Of estop-
pei. IL Lowenthai IL entitled to est0p
Matthews from denying his signature 70
the bond, on the ground that he was IN
duced 10 forbear prosecution Of the pro-
ceedings before the Board whereby % re-
lease himself, his remedy does not lie by
bill in chanoery for eontrlbution, but by
common law action. As 10 Milsaps, there
Il no element Of estoppel. He was not pres
emit Hf the proceedings before the Board, |
and the afnxing Of Mathews name 10 the |
bond was An IDLE thing - 10 him By this |
be lost neither The night 70 cal on the old |
.urefies nor did he scquirs any right 70 |
rsIi on the supposed new ones. He stands |
.xnctiy where be did originally, and not |
being dzmnifed By the proceedings before |
he Board. be cHnnct invoke the doctrine |
n eEfoppsl By reason 81 them.
Decree reversed. deuurrer sustained,
md hin dismissed - - nEfthsw<, without
,rsjudice 70 any isx.l rirhts of Lowenthsl
md Bennett kgkinst him.
rTo be r<ported.l