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So if any one of the debtors should have become bankrupt, his assignees are necessary parties (d), or if any one should have died, his representatives, both real and personal, must be brought before the court, whether the debt be a specialty, or a simple contract debt; for the late statute 3 & 4 Wm. 4, c. 104 (6) makes freehold and copyhold estates assets for the payment of simple contract debts, and the creditor may have to come in the last place upon the real assets for satisfaction.
The same necessity, of having all parties before the court who are interested in the subject-matter of dispute, exists, whether the suit is instituted for relief by a surety against the creditor, on the ground of fraud, and having been over paid (e),-or for relief by bail against the sheriff, for an undue assignment by him of the bail bond (ƒ),—or by a surety to be relieved from his responsibility, to the extent of the value of securities assigned to the creditor, and lost by him through his neglect (g),—or for contribution by one surety who has paid, against another who has not (h).
Where the surety for an officer to the Commis
(d) Capel v. Butler, 2 Sim. & S. 457.
(e) Roveray v. Grayson, 3 Swanst. 145 n; Makepeace v. Needler, Bunb. 291.
(f) Izraell v. Narbourne, 1
Vern. 87; S. C. 1 Eq. Ca. Ab. 72. (g) Capel v. Butler, 2 Sim. & S. 457.
(h) Lawson v. Wright, 1 Cox, 275.
(6) Previous to the passing of this statute, it depended upon the nature of the obligation entered into with the creditor, whether upon the decease of the principal or the sureties, (they not being traders,) their real assets became chargeable with the debt due to the creditor: but in a suit by a surety for contribution, the personal representative of a deceased surety, was (in general) sufficient, without making the real representative a party, notwithstanding the obligation by which the sureties bound themselves was a specialty; since the surety paying the specialty debt of the principal debtor, was merely a simple contract creditor of the co-surety for the share which he was entitled to receive from the estate of the deceased surety (Copis v. Middleton, T. & Russ. 224): now, however, the statute has made the real estate liable, as well as the personal estate.
sioners of Excise, had been sued upon the bond given by him for his principal's duly accounting for the monies received by him by virtue of his office, filed his bill against the Attorney-General, and the accountants to the commissioners, alleging that the principal had duly accounted, and had paid more than he had received: it was held, upon a demurrer put in by the accountants for want of parties, that the accountants were only ministerial officers to the commissioners, and in nature of servants, and that the commissioners in being ought to be parties, though the commission might be varied from the time the plaintiff first became bound (i).
An exception to the rule above laid down takes place, where it is proved, or admitted, that the sureties are insolvent (j), or have not paid any thing (k); for there is then no pretence for the principal to say, that the creditor ought to bring the sureties before the court, the demand of the creditor being restrained as a demand against the principal, who has nothing to demand over: but it may be questionable whether in such a case, the creditor would not be considered to have given up his claim as against the surety. So if it be proved, or admitted, that the principal debtor is insolvent (), or that, having died, he left no property at his death (m); neither the insolvent in the one case, nor his representative in the other, is a necessary party to the suit the creditor may, however, if he think proper, make the insolvent a party, and he will not be entitled to his costs, even though the bill contain
(i) Makepeace v. Needler, Bunb. 291.
(j) Per Lord Eldon in Cockburn v. Thompson, 16 Ves. 321; Angerstein v. Clark, 2 Dick. 738; S. C. 3 Swanst. 147 n; Madox v. Jackson, 3 Atk. 406; Lawson v. Wright, 1 Cox, 275.
(k) See Cockburn v. Thompson, supra; Madox v. Jackson, supra. (1) Deering v. The Earl of Winchelsea, 2 Bos. & P. 270; S. C. 1 Cox, 318.
(m) See the observation of Lord Hardwicke, C., in Madox v. Jackson, 3 Atk. 406.
a statement that the principal debtor is insolvent (n).
In a suit by a surety for contribution it is necessary upon the decease either of the principal debtor, or any of the co-sureties, to make the real and personal representatives of such principal debtor or cosureties parties to the suit (o); unless the insolvency of such deceased principal debtor, or co-surety is both charged and proved (p).
If the principal have become insolvent, and is a party to the suit, it is not necessary to prove his insolvency (9) but if the principal be not before the court, his insolvency must be charged and proved (r).
If any one of the co-sureties have become insolvent, and the object of the bill is to seek contribution from the solvent co-sureties, for the share of the insolvent one, the insolvency of that co-surety should be charged and proved (s).
(n) Haywood v. Ovey, 6 Madd. 113; O'Carrol's Case, Ambl. 61. (0) See stat. 3 & 4 Wm. 4, c. 104; Onge v. Truelock, 2 Moll.
(p) See Deering v. The Earl of Winchelsea, 2 Bos. & P. 270; S. C. 1 Cox, 318; Madox v. Jackson, 3 Atk. 406; but see
Hole v. Harrison, 2 Rep. temp.
(q) Lawson v. Wright, 1 Cox, 275.
(r) See Madox v. Jackson, 3 Atk. 406; Angerstein v. Clark, 2 Dick, 738; S. C. 3 Swanst. 147 n; Lawson v. Wright, supra.
(s) See supra.
Where they stand in the place of the principal, as to the
53 and (n.)
Who are sureties within the statute
What debts are proveable under the statute
not an indemnity bond though forfeited, if no damage
101-103. 135. 137
Assignees bound by the bankrupt's contracts, when
Rights of creditor on bankruptcy of principal:
against surety, where principal is a receiver