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CHAPTER II.

OF ACTIONS BY THE SURETY.

1. Against the principal.
II. Against a co-surety.
I. Against the principal.

In an action by a surety against the principal, for money paid on account of the latter, the plaintiff must prove the original obligation, by proof of the bond, agreement, or other instrument, by which he became surety. And unless the fact appear from the instrument itself as executed by the defendant, proof must be given that the plaintiff became a party at the instance of the defendant in the character of surety, or that he assented to it (r). The plaintiff must also prove actual payment of the money by him, and that he gave notice to the defendant to repay it (s).

II. Against a co-surety.

A surety, in an action against a co-surety, must prove their obligation as co-sureties,—his application to the defendant to pay his share,-and the payment by himself (t).

If a verdict has been obtained against one of several sureties, against whom the debt and costs have been levied, the record of the judgment will (it seems) be evidence against a co-surety, in an action against him for contribution (u).

Where (n) See 2 Stark. on Evidence, pp. 59 & 773, ed. 1833.

(u) See Powell v. Layton, 2 See ibid.

N. R. 365. (t) 2 Stark. on Evidence, p. 774, he must go into equity.” His lordship then inquired if the letter had been pleaded, and was answered in the negative. The defendant's counsel then asked, if his lordship thought that after such a notice, they could be considered to have trusted the collector under the bond ? Per Abbott, C.J., “I think they may till it is revoked : at all events you should have pleaded it.” And the plaintiffs had a verdict.

ed. 1833.

(s)

there are several sureties, and the debt is paid by all or some of them, each surety must sue the principal separately for the share paid by him, and they cannot maintain a joint action against the principal for the several proportions of the money paid by them (v); unless the debt, so paid by the sureties joining as plaintiffs, was paid by them out of a joint fund, in which case a joint action for the repayment of the money so paid by them may be maintained (w). The evidence of the principal, who had become bankrupt and obtained his certificate, is not admissible for the defendant in an action brought against the latter for contribution, to show that payments were made by the principal to the creditor, and that the creditor had subsequently acknowledged, that the payments so made were received by the creditor in satisfaction of the debt for which the sureties were liable, and not on account of a debt due from the principal for which he was solely liable, but the plaintiff has a right to the oath of the creditor, and to be at liberty to cross-examine him (2): had the declaration of the creditor been made at the time of payment, it seems it would have been admissible as part of the res gesta (y).

(v) Kelby v. Steel, 5 Esp. 194; Brund v. Boulcott, 3 Bos. & P. 235.

(w) See Osborne v. Harper, 5

East, 225.

(2) Dunn v. Slce, Holt, N. P.C. 399.

(y) Dunn v. Slee, supra.

CHAPTER III.

OF THE NECESSARY PARTIES TO A SUIT IN EQUITY.

The rule in equity being, (except in particular cases,) that all persons interested in the subjectmatter of a suit, however numerous, should be parties, that there may be a complete decree between all parties having material interests (2), a creditor suing upon a joint, or joint and several, undertaking, must bring all the debtors before the court, principals as well as sureties (a); for no account taken would be binding upon an absent party, and consequently no complete decree could be made (5): besides the debtors are entitled to the

(2) Cockburn v. Thompson, 16 Ves. 321; OʻCarrol's Case, Ambl. 61 ; Capel v. Butler, 2 Sim. & S. 457; Madox v. Jackson, 3 Atk. 406; and see Lord Eldon's observation in Cockburn v. Thompson, supra.

(a) Bland v. Winter, 1 Sim. & S. 246; Ashurst v. Eyre, Atk.

51; S. C. 3 Atk. 341; Madox v. Jackson, 3 Atk. 406; Angerstein v. Clark, 2 Dick. 738; S. C. 3 Swanst. 147 n; Anon. 2 Freem. 127 ; Cockburn v. Thompson, 16 Ves. 321 ; overruling semb. Collins v. Griffith, 2 P. Wms. 313; S. C. 2 Eq. Ca. Abr. 188.

(5) The late case of Newton v. The Earl of Egmont (4 Sim. 574), seems at variance with the proposition here laid down. The facts of this case appear to be these :-Čertain estates in Somersetshire were settled to the use of John James Earl of Egmont, the defendant's late father, for life, with remainder, to such uses as the said John James Earl of Egmont, and John Earl of Egmont, his son, then Viscount Perceval, should during their joint lives appoint, with remainder, to such uses as John Earl of Egmont, the son, in case he should survive his father, should appoint, with remainder, to John Earl of Egmont, the son, for life, with remainder, to trustees to preserve contingent remainders, with remainder, to John Earl of Egmont, the son's first and other sons successively in tail male, with remainder, to John James Earl of Egmont in fee.

By an indenture dated in 1817, executed during the lifetime of John James Earl of Egmont, the father, John Earl of Egmont, the son, together with Viscount Perceval, then the Honorable Henry Perceval, the only son of John Earl of Egmont, and Thomas Wynn Bellasyse, Esquire, as sureties, covenanted with Newton, (the

assistance of each other in taking the accounts (6), and where one has paid more than his share of the

(b) See Thorpe v. Jackson, 2 servation of Lord Hardwicke in You. & Coll. 553; and the ob- Madox v. Jackson, supra.

plaintiff in the suit,) to pay to the plaintiff Newton, a certain annuity during the life of a person named in the indenture, and John Earl of Egmont, the son, and Viscount Perceval, by way of collateral security, demised the Somersetshire estates to Griffin, (a trustee for the plaintiff

' Newton,) from the day of the decease of John James Earl of Egmont, the father, for a term of years determinable on the death of the cestui que vie : and John Earl of Egmont, and Viscount Perceval, severally covenanted with the plaintiff Newton, that if they, or either of them, should survive John James Earl of Egmont, the father, then immediately after his death, they or the survivor would appoint or demise the estates to Griffin the trustee, or to such other trustee as the plaintiff Newton should appoint, for the term of 1000 years from the day of the decease of John James Earl of Egmont, the father, upon certain trusts therein mentioned, (being for the benefit of the plaintiff Newton, and to secure his annuity,) determinable on the life of the cestui que vie named in the indenture, and subject thereto, in trust for the person or persons entitled to the freehold and inheritance of the estates expectant upon the term of 1000 years.

In the year 1822, (John James Earl of Egmont, the father, being then dead,) John Earl of Egmont granted other annuities to the plaintiff Newton, for securing which annuities, John Earl of Egmont appointed, and Viscount Perceval, by way of further assurance, demised the same estates, with other property, to Griffin, but no notice was taken of the term of years which was to have been raised for securing the annuity under the indenture of 1817.

In the year 1824, John Earl of Egmont appointed and conveyed the estates comprised in the indenture of 1817 together with other estates, to certain trustees named in the indenture, for the benefit of such of the earl's creditors as should execute the conveyance and appointment. Several of the earl's creditors executed this deed, and one of them, on behalf of himself and the others, filed a bill to have the trusts of the deed carried into execution.

In 1830, a decree was pronounced in that suit; and in 1831, the plaintiff Newton filed his bill against John Earl of Egmont, Viscount Perceval, and the trustees named in the deed of 1824, together with the plaintiff in the creditors' suit, for carrying the last-mentioned deed into execution, and which bill, after stating to the effect above-mentioned, and also stating that the cestui qui vie named in the indenture of 1817 had died in the year 1825, and that there was then due to the plaintiff Newton, in respect of the annuity granted to him for the life of such cestui que vie, a considerable sum of money, and also a further sum in respect of the annuities subsequently granted to him, and that the trustees under the deed, and the several incumbrances had notice of the plaintiff Newton's securities, before their securities were executed-prayed for an account of what was due to him under his securities,—that the priorities of himself and the other incumbrancers

debt, he is entitled to a contribution from him who has paid nothing, or less than his share: and by making all the debtors parties, the circuity of another suit for contribution is thereby avoided (c).

(c) Greerside v. Benson, 3 Atk. 253, in notis.

might be declared,—that he might redeem the securities which should appear to be prior to his own, and that he might have the benefit of the decree as to that part of his demand for which he should not be entitled to priority over the trust deed.

To this bill, the defendant John Earl of Egmont, took two objections for want of parties; one of which was, that Mr. Bellasyse, who was one of the sureties for the payment of the annuity granted by the deed of 1822, was not a party to the suit.

In support of this objection it was urged, that there were large arrears of the annuity granted by the deed of 1822, which the sureties were liable to pay, and that the court could not grant the relief prayed by the bill, unless they were both before the court :—that both sureties ought to be present, in order to see that the priorities were properly settled.

For the bill it was stated, that Viscount Perceval was not made a party, as a surety, under the deed of 1817, but as a joint owner of the estate who had concurred in creating the incumbrance :—that Mr. Bellasyse had no interest in the estate, having merely joined in a personal covenant to pay the annuity, and that an incumbrancer may pursue his security on the land of the principal debtor, although another person may have joined as a surety in a personal security; and his honor the Vice-Chancellor held, that Mr. Bellasyse was not a necessary party, because it was not stated that he had any security on the estates, but only that he had entered into a personal covenant to pay the annuity granted by the deed of 1817.

It must be admitted, that Mr. Bellasyse, not being a party to the suit instituted by Mr. Newton, could not be affected by any thing that might be done in that suit; and that if Mr. Bellasyse remained liable to Mr. Newton upon his personal covenant, Mr. Bellasyse might, by redeeming or otherwise satisfying the annuity, have instituted a suit to settle the priorities between himself and the other incumbrancers; and this notwithstanding the priorities had been already established in the suit instituted by Mr. Newton, and thus there would hare been two suits for the same object, which is against the general rule of the Court. It is clear also, that if Mr. Bellasyse remained liable to Mr. Newton, the former had an interest in seeing these priorities settled ; for Mr. Newton might rely on Mr. Bellasyse's personal covenant to make good the arrears of the annuity, and take little interest in the question of priorites, and the proceeds of the estates comprised in the deed of 1824, might, upon the sale thereof, be in consequence applied in the discharge of subsequent incumbrancers, the prejudice of Mr. Bellasyse, and in a manner different from what would have been the case if Mr. Bellasyse had been a party to the suit. Probably the Vice-Chancellor, in giving his judgment, proceeded upon the ground, that the creditor had elected to sue the estate, and release the surety.

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