Act of January 13, 1818–January 1, 1820. R. C. ch. 116. such judgment shall be discharged.(d) From Oct. 1786, c. 15, 12 Stat. Larg. 268; 1792, c. 145, R. C.; 1794, c. 175, R. C.; Dec. 1806—April 1, 1807, c. 87, ed. 1808; 3 Stat. Larg. Shep. ed. 285. 2.2. Where the principal obligor or obligors, recognizor or recognizors, have, or hereafter shall become insolvent, and there have been, or shall be, two or more securities, jointly bound with the said principal obligor or obligors, recognizor or recognizors, in any bond, bill, note, recognizance or other obligation, for the payment of money or other thing,(c) and judgment hath been, or hereafter shall be obtained, or execution awarded or issued against one or more of such securities, or his or their legal representatives, it shall and may be lawful for the court, before whom such judgment was or shall be obtained, or from which such execution was issued, upon motion of the party or parties, his or their legal representatives, against whom judgment hath been entered up, or execution issued, as securities aforesaid, to grant judgment, (d) A surety having paid five several sums of money for his principal, may maintain five several motions, and recover several judgments for the debts, and for the costs of each motion. Ayres v. Lewellin, 3 Leigh, 609. Asto motion to consolidate, see Tucker, pres't, Ib. p. 615. (c) These words, "or other thing," are not in the preceding section, which prescribes the remedy of the surety against his principal; but there can be no distinction between the cases; and, therefore, it was decided that the surety had a right to a judgment against his principal for the same specific thing in kind, which he had himself been adjudged to pay. Graves v. Webb, 1 Call, 443. For the doctrine of contribution, see Thweatt's adm'r v. Jones, adm'r, 1 Randolph, 328-344; Dering v. Earl of Winchelsea, 1 Cox's Cas. Eq. 318; 2 Bos. & Pul. 270, S. C., and Bachelder v. Fiske et al. er'ors, 17 Mass. R. 464; Craythorne v. Swinburne, 14 Ves. jun. 160; M'Mahon et al. v. Fawcett, 2 Rand. 529; Harrison v. Lane et al. 5 Leigh, 414. Several persons endorsing a bill of exchange for the accommodation of the drawer, are not to be considered as joint sureties, and bound to contribution among themselves, without an express stipulation to that effect. Farmers Bank of Virginia v. Vanmeter, 4 Rand. 553; M'Donald v. Magruder, 3 Peters's R. 470. Where some of the sureties are insolvent, for the principle of contribution of law, see Cowell v. Edwards, 2 Bos. & Pul. 268, in equity; see Hole v. Harrison, 1 Ch. Cas. 246; and see Browne v. Lee, 6 Bar. & Cres. 689. A. B. and C. are sureties for D. in a bond; judgment is recovered against D. the principal, and the sureties A. and B., but not against the other surety C., and a fi. fa. being sued out on the judgment, and levied on the property of D. the principal, he gives a forthcoming bond, in which A. and B. and another person join him as sureties; execu tion on such forthcoming bond is awarded, and levied on the goods of A., one of the sureties in the original bond, as well as in the forthcoming bond: Held, that A. has no right to contribution from C. his co-surety in the original bond. Langford's ex'or v. Perrin, 5 Leigh, 552. Judgment is recovered, and a fi. fa. sued out against D., principal debtor, and A. and B. his sureties; the fi. fa. is levied on the goods of D. the principal, who gives a forthcoming bond, in which A. and B., and another person, E., are bound as D.'s sureties; and on execution on the forthcoming bond, E. is compelled to pay the debt: Held, that E. is co-surety with A. and B. for D. in the forthcoming bond, not surety for A. and B. as well as D., and therefore, E. is entitled only to contribution from A. and B. as co-sureties, not to full indemnity from them as principals. Perrin v. Ragland, 5 Leigh, 552. Contribution will not be enforced against co-sureties, unless it be shewn that due diligence has been used to obtain the sum claimed of the principal obligor, or that he is insolvent. See M'Cormack's adm'r v. Obannon's ex'or et al. 3 Munf. 484; see Tucker, P. 7 Leigh, 603. On a bill filed by a surety against his cosurety and the principal, for contribution from the co-surety in respect of money actually paid by the plaintiff for the principal, it is not necessary to prove the insolvency of the principal; but if the principal were not a party before the court, his insolvency must be proved before the co-surety would be charged. Lawson v. Wright, 1 Cox's Cas. Eq. 275. Joint wrong-doers cannot claim contribution. See this subject discussed by the judges in Thweatt's adm'r v. Jones, adm'r, 1 Randolph, 328-344; and see Peck v. Ellis et al. 2 Johns. Ch. R. 131, 136-8; Betts & Drewe v. Gibbons, 2 Adolp. & Ellis, 57; in which the general rule, and the exceptions thereto, are fully discussed, &c. Peterson v. Skelton, 1 Meason & Welsby, 504. Act of January 13, 1818-January 1, 1820. R. C. ch. 116. and award execution against all and every of the obligors and recognizors, and their legal representatives, for their and each of their respective shares and proportions of the said debt or damages. Oct. 1786, c. 15, 12 Stat. Larg. 269; 1792; 1794. 3.3. No security or securities, his, her or their executors or administrators, shall be suffered to confess judgment, or suffer judgment to go by default, so as to distress his, her or their principal or principals, if such principal or principals will enter him, her or themselves a defendant or defendants to the suit, and tender to the said security or securities, his, her or their executors or administrators, other good and sufficient collateral security, to be approved of by the court before whom the suit shall be depending. Oct. 1786, c. 15, 12 Stat. Larg. 270; 1792. up, 4. § 4. In all cases where judgment hath been, or shall hereafter be entered in any of the courts of record in this commonwealth, against any person as common bail(1) for the appearance of another to defend any suit depend ing in such court, and the amount of such judgment, or any part thereof, hath been paid or discharged by such common bail, his, her or their heirs, executors or administrators, it shall and may be lawful for such common bail, his, her or their heirs, executors or administrators, to obtain judgment by mo tion against the person or persons for whose appearance they were bound, his, her or their heirs, executors or administrators, for the full amount of what shall have been paid by the said common bail, his or her heirs, executors or administrators, in any court where judgment may have been entered up against such common bail. Dec. 27, 1792, c. 145, R. C. [The provisions of this and the next section are hereby extended to any special bail, paying money for his or her principal, on any judgment rendered against such special bail, after the commencement of this act. Art of Feb. 15, 1827, Ses. Acts 1826-7, c. 28, § 5; Sup. R. C. c. 209, p. 269.] 5. 5. Provided always, That no judgment shall be obtained by motion, as aforesaid, unless the party or parties, against whom the same is prayed, shall have ten days previous notice thereof. (d) Ibid. 6. § 6. When any person or persons shall hereafter (e) become bound as se (1) A covenant not to sue an obligor, may be pleaded as a release. Chandler v. Harrick, 19 Johns. R. 129. But a covenant not to sue for a given time, does not amount to a defeasance, and cannot be pleaded as such, but is a covenant only, for the breach of which the obligor may bring his action on the covenant. Winands v. Huston, 6 Wend. 471. A covenant not to sue one of four joint debtors is not a release of the others; when such covenant is entered into by the consent of the others, and where they have agreed not to plead it in bar to an action against them on the original cause of action. Bank of Chenango, v. Osgood et al. 4 Wend. 607.. To avoid circuity of action, a covenant may be pleaded as a release; but it must be a covenant between those parties only; and if it contains no words of release, it will not be construed such, unless it gives the covenantee a right of action which will precisely countervail that to which he is liable; and unless, too, it was the intention of the parties that the last instrument should de * See 18th Leigh. 390. 1 feat the first. Garnett, ex'or of Brooke, v. Macon et al. 6 Call, 308; 2 Brock. R. 185. (d) If the notice be sufficiently certain to apprise the party of the grounds of the motion, it will answer the purpose intended by the statute. Graves v. Webb, 1 Call, 443; Drew v. Anderson, 1 Call, 53. But if the notice descend to particulars, as to dates and sums, the documents referred to, must, when produced, correspond with the notice, or no judgment can be given. Drew v. Anderson, 1 Call, 51. But if the defendant appear, and judgment be rendered on a hearing of the parties, the notice of the motion is not a part of the record, unless it be made so by a bill of exceptions to the opinion of the court. Ayres v. Lewellin, 3 Leigh, 609. (e) A surety to a bond, note, &c., prior to the operation of this law, (March 1st, 1795,) is not absolved from his obligation, by mere. ly requesting the obligee to sue, and his failure to comply. Croughton v. Duval, 3 Call, 69; King v. Baldwin et al. 2 Johns. Ch. R. 559; Cope v. Smith et al. 8 Serg. & Raw. 110. But see Pain v. Packard, 13 Act of January 13, 1818-January 1, 1820. R. C. ch. 116. Johns. R. 174, and Spencer, C. J. in King v. Baldwin et al. (in error,) 17 Johns. R. 384, 387-delivering that which turned out to be the opinion of the court. See Warner v. Beardsley, (in err.) 8 Wend. 194, and the remarks of the chancellor, on these cases, p. 198, and of Thompson, J. in Sprigg v. The Bank of Mount Pleasant, 10 Peters's R. 266-7. But if the creditor does any act impairing the rights of the surety;-as by varying the terms of the obligation;-enlarging the time of performance, &c. without the consent and approbation of the surety, the surety will be thereby discharged. In the case of Rees v. Berrington, 2 Ves. jun. 540, time was extended by the obligee to the principal, without any communication with the surety; the mode of extension was by notes, which were renewed at different times. And where the surety called on the obligee to bring suit against the principal; who complied, but agreed with the principal, that no execution should issue on the judgment for the term of three years, in case the interest should be regularly paid; which agreement was without the approbation or consent of the surety, the obligee was perpetually enjoined from proceeding against the surety. Nisbet v. Smith et al. 2 Bro. Ch. R. 579. The rule is this-that if a creditor, without the consent of the surety, gives time to the principal debtor, by so doing he discharges the surety; that is if time is given by virtue of a positive contract between the creditor and the principal-not where the creditor is merely inactive. And the surety is held to be discharged, for this reason, because the creditor, by so giving time to the principal, has put it out of the power of the surety to consider whether he will have recourse to his remedy against the principal, or not; and because he, in fact, cannot have the same remedy against the principal as he would have had under the original contract. Ld. Eldon, in Samuell v. Howarth, 3 Meriv. 278. The principle of these cases has been entirely sanctioned by the court of appeals of Virginia, in Croughton v. Duval, 3 Call, 69; Hill v. Bull, 1 Gil. R. 149; Roane, J. in Bennett v. Maule, 1 Gil. R. 328, and 1 Brock. R. 220. into a covenant, on receiving a confession of judgment by the principal, to stay execution for a given time, the surety is thereby discharged in equity, from the obligation of his contract. The quere as to the forum was presented in the case of Steptoe's adm'rs v. Harvey's ex'ors, 7 Leigh, 501; and the court adhered to this decision, and approved the case of Davey et al. v Pendergrass, 5 Barn. & Ald. 187, a valid obligation created by an instrument under seal, &c. See case, and Tremper v. Hemphill, &c. 8 Leigh, 623. See King v. Baldwin et al. 2 Johns. Ch. R. 559-61-3; see Hawkshaw v. Parkins et al. 2 Swanst. 539, 545-50; Hulme v. Coles, 2 Simon, 12. "The liabilities of sureties are governed by principles which have been long settled in equity, and are now adopted in courts of law. I say now, because the court of C. P. formerly held a different doctrine. But at present [Aug. 7, 1817,] it is firmly established that the same principles which have been held to discharge the surety in equity, will operate to discharge him at law. However, as the same relief is to be obtained in both, a court of equity will not send a party who is suing here to a court of law, for the discharge to which he is equally entitled to in this place." Ld. Eldon, Ch. in Samuell v. Howarth, 3 Meriv. 277-8. And see Pain v. Packard, 13 Johns. R. 174; King v. Baldwin, (in error,) 17 Johns. R. 384. But see Davey et al. v. Pendergrass, 5 Barn. & Adol. 187; 2 Chitty's R.; 6 Madd. 124; and Locke v. U. S. 3 Mason, 446, 453. If the creditor give time to the principal in a bond prior to the breach of the obligation, without the consent of the surety, the surety is discharged and he may set up the defence at law. Aliter, if the time be given after the breach, for then the only remedy of the surety is in equity. U. S. v. Howell, 4 Wash. C. C. Rep. 620, in which Washington, J. remarks on the case of Davey v. Pendegrass, 5 B. & A. 187; Bulfeel v. Jarrold, 8 Price, 467. See Clark v. Niblo, 6 Wend. 236, 243, (in error,) as to the forum, and Combe et al. v. Woolf, 8 Bing. 156. To a plea that plaintiff had released one of two joint obligors, the plaintiff replied that the release was given with an undertaking on the part of the defendant, the other obligor, that the release should not operate in his discharge. Rep'n held ill, and judgment for defendant. Cocks v. Nash, 9 Bing. 341. And see Aldridge v. Harper et al. 10 Bing. 118. In Ward v. Johnson, 6 Munf. 6, it was decided that a covenant by an obligee not to sue one of two joint and several obligors, is but a covenant, and no release, on the authority of Lacy v. Kynaston, 12 Mod. 551; Dean v. Newhall, 8 T. R. 168, to which add It is no answer to a surety claiming his disHutton v. Eyre, 6 Taunt. 289. But a majo- charge, that the variation of the original conrity of the court inclined to think, on the tract was beneficial to him; for the law has authority of Nisbet v. Smith et al. 2 Bro. said that the surety shall be the judge of that, Ch. R. 579, which had been recognized in and that he alone has the right to determine Croughton v. Duval, 3 Call, 69, that where, whether it is, or is not for his benefit. The as in this case, (Ward v. Johnson,) during creditor has no right-it is against the faith the pendency of a suit, the creditor enters of his contract-to give time to the princi*a mant wat to sve one Does not clause the other", W 11-dugh 391. Moker dus. t Act of January 13, 1818 January 1, 1820. R. C. ch. 116. curity or securities by bond,‡ bill or note, (2) for the payment of money or tobacco, and shall apprehend that his or their principal or principals, is, or are likely to become insolvent, or to migrate from this commonwealth, without previously discharging any such bond, bill or note, so that it will be impos sible or extremely difficult for such security or securities, after being compelled to pay the amount of the tobacco or money which may be due by such bond, bill or note, to recover the same back from such principal or principals, it shall and may be lawful for such security or securities, in every such case, pal, even though manifestly for the benefit of the surety, without the consent of the surety. Samuell v. Howarth, 3 Meriv. 272,8-9. And see Boultbee v. Stubbs, 18 Ves. jun. 21; Norris v. Crummey et al. 2 Rand. 333; Henry v. Stone, 2 Rand. 464; U. S. v. Hillegas's adm'rs, 3 Wash. Cir. Ct. Rep. 70; Miller v. Stewart, 4 Wash. C. Ct. R. 26, 9 Wheaton, 680. A surety will not be discharged by any indulgence granted by the creditor to the principal debtor, unless such indulgence ties up the hands of the creditor from pursuing the debtor at law. Nor will the surety be discharged, even then, if the indulgence was granted with his knowledge and assent. And to entitle a surety to a discharge from his responsibility, he must state such a case as will entitle him to it, and demand his discharge in his bill. Hunter's adm'rs v. Jett, 4 Rand. 104. A mere indulgence given by a creditor to a principal debtor, the creditor not binding himself to suspend his proceedings against the principal for any time, though such indulgence be given at the very time the sheriff is about to levy the execution on the principal's property, and though in conse. quence of that indulgence the principal is enabled to remove his property out of reach of future process, does not, even in equity, discharge the surety. M'Kenny's ex'or v. Waller, 1 Leigh, 434. And see Chichester's adm'r v. Mason, 7 Leigh, 244; Reynolds v. Ward et al. 5 Wend. 501. See the remarks of ld. chan. Eldon in the case of Mayhew v. Crickett et al. 2 Swanst. 189, 190, 191; 1 Wilson's Ch. R. 418, S. C.; Bowmaker v. Moore, 7 Price's E. R. 223, 3 Price, 214; Ward v. Vass, 7 Leigh, 135; Eyre v. Everett, 2 Russell, 381. Mere delay of the creditor will not affect surety's liability. Sailly v. Elmore, 2 Paige, 497. An agreement between the creditor and principal debtor for delay, or otherwise changing the nature of the contract, to the prejudice of the surety, in order to discharge the latter, must be an agreement having a sufficient consideration, and binding in law on the parties. M'Lemore v. Powell et al. 12 Wheat. 554; Hall et al. v. Constant, 2 Hall's R. 185. A creditor suspends execution on a forthcoming bond for several years, but he does so without consideration, and he nowise binds himself to suspend execution for any definite time. The principal and all the sure ties but one become insolvent, and then the creditor sues out execution against the solvent surety: Held, the surety is not enti tled to relief in equity. Alcock v. Hill, 4 Leigh, 622. In this case Tucker, P. states the principles on which indulgence, given by creditor to principal, exonerates the surety. If the creditor make an agreement with the principal debtor, in a forthcoming bond, to take a certain sum, payable in five annual instalments, in full satisfaction of the bond, without the consent of the surety; the surety will be thereby released from his liability on the bond: and the court, on whose process the forthcoming bond was taken, sitting as a court of law, may, on motion of the surety, and on proof of the agreement and the giving of time to the principal, direct an exoneretur of the surety, from the bond, and all executions that may be sued out on it; and, on such motion, the principal is a competent witness for the surety, to prove the agreement between himself and the creditor, and the indulgence given for the debt. Steele v. Boyd, 6 Leigh, 547. As to the effect of a reservation of rights and remedies against sureties, see Boultbee v. Stubbs, 18 Ves. jun. 21, and authorities cited. And against co-obligors, see Solly v. Forbes, 2 Brod. & Bing. 38. Bail are considered as sureties, and are entitled to the benefit of these principles. Rathbone et al. v. Warren, (in error,) 10 Johns. R. 587, and Gibbs, C. J. in Moore v. Bowmaker, 6 Taunt. 379; Willison v. Whitaker, 7 Taunt. 53. See the principle stated by Gibbs, C. J. in Melvill et al. v. Glendining, 7 Taunt. 126; see Dickinson v. Sizer et al. 4 Rand. 113. For the principles on which relief will be granted to bail. Niblo v. Clark, 3 Wend. 24, and 6 Wend. 237. And so are guarantees. Samuel v. Howarth, 3 Meriv. 272. For rights of surety in a bond given by one partner for a partnership debt, see Weaver v. Tapscott, 9 Leigh, 424. (2) It seems that an endorser of a promissory note is not a surety within the meaning of this law. See Beardsley v. Warner, 6 Wend. 610, 8 Wend. 194, S. C., in error, affirmed. Farmers Bank of Virginia v. Vanmeter, 4 Rand. 553; M'Donald v. Magruder, 3 Peters's R. 470. Act of January 13, 1818-January 1, 1820. R. C. ch. 116. provided an action shall have accrued on such bond, bill or note, to require, by notice in writing, of his or their creditor or creditors, forthwith to put the bond, bill or note, by which he or they may be bound as security or securities as aforesaid, in suit. And, unless the creditor or creditors so required to put such bond, bill or note in suit,† shall, in a reasonable time, commence an action on such bond, bill or note, and proceed with due diligence in the ordinary course of law to recover a judgment for, and by execution to make the amount of tobacco or money due by such bond, bill or note, the creditor or creditors, so failing to comply with the requisition of such security or securities, shall thereby forfeit the right which he or they would otherwise have to demand and receive of such(3) security or securities, the amount of the money or tobacco which may be due by such bond, bill or note. Dec. 23, 1794, Mar. 1, 1795, c. 174, R. C. 7. § 7. Any security or securities, or, in case of his or their death, then his or their executors or administrators, may in like manner, and for the same cause, make such requisition of the executors or administrators of the creditor or creditors of such security or securities, as it is herein before enacted may be made by a security or securities of his or their creditor or creditors; and, in case of failure of the executors or administrators so to proceed, such requisitions as aforesaid being duly made, the security or securities, his, her or their executors or administrators making the same shall have the same relief that is herein before provided, for a security or securities, when his or their creditor or creditors shall be guilty of a similar failure. 8. § 8. Provided, always, That nothing in the two last preceding sections contained shall be so construed as to affect bonds with collateral conditions, or the bonds that may be entered into by guardians, executors, administrators or public officers :(1) And provided also, That the rights and remedies of any creditor or creditors, against any principal debtor or debtors, shall be in no wise affected thereby; any thing to the contrary, or seeming to the contrary, notwithstanding. Ibid. + Principal debtor and surety being bound in a bond for money payable at a future day, the surety, before the debt has become pay able, represents to the creditor that the principal is about to remove himself and his effects out of the commonwealth, and requests the creditor to sue out an attachment against him under the statute 1 Rev. Code, c. 123, § 14, and the creditor sues out the attachment accordingly, and it is levied on goods of the principal debtor sufficient to satisfy the debt; but afterwards the creditor accepts a mortgage from the principal debtor to secure punctual payment of the debt when due, and thereupon the attached effects are, with the creditor's consent, restored to the debtor, and the attachment no further prosecuted; and the debtor eloigns the mortgaged effects: Held, the surety is, in equity, discharged from the debt. Ashby's adm'x v. Smith's ex'x, 9 Leigh, 164. Quare,-whether in such case the surety had a right, under the statute 1 Rev. Code, c. 116, § 6, to demand that the creditor should sue out and prosecute such attachment against the principal debtor? Ibid. (3) Wherever some of several sureties are discharged by any act or omission of the obligee, the other sureties are also discharged; and therefore, where C. S. brought debt on bond against W.'s administrator, and on oyer it appeared that the bond was executed by H. and four others, of whom W. was one, and defendant pleaded in bar, that W. and three of the other obligors were sureties for H., the first obligor, and that those three other sureties required plaintiff to bring suit on the bond, promptly, according to this act of assembly, but plaintiff did not bring suit, as required, within a reasonable time, and when suit was instituted, those three other sureties pleaded plaintiff's failure to bring suit promptly in bar of the action against them, and on that plea judgment was rendered in favour of those three sureties, &c.; on general demurrer to this plea, the plea was sustained, and the matter pleaded held to be a bar to plaintiff's action against W.'s administrator. Wright's adm'r v. Stockton, 5 Leigh, 153. (1) See Norris v. Crummey et al. 2 Rand. 223, 338. Motions for money received by officers under execution. See Chapman v. Chevis, 9 Leigh, 297. |