Bagott v. Mullen.

recovery of interest where it was contracted for. Rev. Laws 1831, p. 200. So that the decision was, in effect, that where by law a certain sum is due by contract, it may be discharged by the payment of a less sum, a rule not elsewhere recognized as founded in reason or authority, at that date or since.

But whatever the state of the authorities at the time that decision was announced, there can be no question now of its unsoundness. Parson declares, that "interest, if expressly promised to be paid, is as much a part of the debt as the principal." 2 Notes and Bills, 375. "But if the principal has been paid, or a new note or bill given for it, and interest which was due was not paid, it remains due, and an action may be maintained for it." Id. 398.

The rule is stated to the same effect in Edwards on Bills and Promissory Notes, 719.

The demurrer was properly sustained to the third paragraph of the answer. The decision in the case of Comparet v. Ewing must be regarded as overruled.

The demurrer to the fourth paragraph was correctly sustained on the authority of Robbins v. Dishon, 19 Ind. 204.

The judgment is affirmed, with ten per cent, damages and costa

Bagort and actner, appellants, v. MULLEN.

(32 Ind. 332.)

Sureties-contribution between - Jurisdiction.

The parties were sureties on an official bond, upon which judgment had been recovered and paid by the plaintiff. In an action against the co-sureties for contribution, the latter alleged, in defense, that they had never been served with process, nor appeared in the action on the bond; that the plaintiff had appeared for them without authority, and suffered judgment to be entered, to defraud them; that he had, without their knowledge, entered into a special contract with the relators in that action to pay the judgment out of funds then in his hands, belonging to the principal on the bond, and, in consideration of such agreement, received an extension of one year's time on said judgment; that but for such extension of time the judgment could have been made out of the property of the principal. Held, that these facts did not constitute a defense to the action.

The defendants further alleged that they signed the bond out of which the liability arose at the request of the plaintiff Held, that they were, nevertheless, liable to contribution.

Bagott v. Mullen.

CASE stated in the opinion.

H. W. Harrington and M. K. Rosbrough, for appellants.

RAY, J. Complaint against appellants, charging that, in 1864, the state, on relation of Hasselman and another, recovered a judg ment against one Vandever, as sheriff, and the appellee and the appellants, upon an official bond, a copy of which judgment is filed with the complainant; that said Vandever is notoriously insolvent; and that appellee has been compelled to pay said judgment in full, and demands contribution from the appellants.

A sixth paragraph of answer was filed, which averred that process was not served personally on the appellants in the suit upon which the judgment was rendered, and that neither of the appellants appeared to the action; but that the appellee, without authority, appeared for them, and suffered judgment to be entered against them, to defraud them, and entered into a special contract with the relators to pay the said judgment with funds belonging to the said defendant Vandever, then in the hands of the said appellee, and, in consideration of said agreement, received an extension of time for one year on said judgment; that, but for such extension of time, the sum named in said judgment could have been made out of the property of said Vandever; and that said extension of time was given without the knowledge of said appellants. It is also alleged, that the appellants signed the official bond of Vandever, from which the liability arose, at the request of the appellee.

A demurrer was sustained to this paragraph.

It will be seen that the answer does not charge that the appellee had any funds in his hands belonging to the judgment defendant, Vandever, or that the appellants had any defense to the action, or that the agreement to extend the time within which said appellee was to pay the judgment himself out of such property prevented the appellants from having execution against the property of the principal defendant in the judgment; nor was the contract for an extension of time made a part of the judgment entry. It is recited in the judgment record, that the parties to the suit appeared and submitted the cause for trial to the court, and that it was agreed by the parties that the plaintiff should have judgment against the defendants.

The ruling in the case of Wiley v. Pratt, 23 Ind. 628, was, that where the judgment showed an appearance for the party, the juris

Bagott v. Mullen.

diction of the court can only be controverted by proof of fraud, or that the judgment defendant was not a resident of the state, nor during the pendency of the suit within the jurisdiction of the court, and had no notice of the action nor authorized the appearance, urless, without such notice or authorized appearance, a defense can be established on the merits to the cause of action. The general averment of fraud, without any statement of facts, constitutes no ground upon which to question the jurisdiction of the court.

There remains, then, the averment that the appellants signed the bond of Vandever, as sheriff, at the request of the appellee.

It is stated in Chitty on Contracts, that if the surety from whom contribution is claimed, became bound at the request of the surety who seeks to recover it, he is not liable; for in such a case the promise to contribute implied in law is negatived. 10th Am. ed. 669. The cases cited as sustaining this rule, are Turner v. Davies, 2 Esp. 478; Thomas v. Cook, 8 B. & C. 728; Taylor v. Savage, 12 Mass. 98; Daniel v. Ballard, 2 Dana, 296; Byers v. McClanahan, 6 Gill & J. 250; Apgar v. Hiler, 4 Zabr. 812; Batard v. Hawes, 2 Ellis & Β. 287. In the case first cited, Turner sued Davies to recover a moiety of & sum paid by him on account of the debt of one Evans. The foundation for the claim to contribution against Davies was this There being an examination in Evans' house, at the suit of one Brough, to induce the execution plaintiff to withdraw it, Turner und Davies joined in a warrant of attorney to Brough, but Davies joined in consequence of having been applied to by Turner, and also by Brough, who required an additional security. Turner, the plaintiff, at the time, took a bill of sale from Evans for his indemnity. It was held, that Davies was not bound to contribute, Turner naving been compelled to discharge the debt of Evans. Lord KENYON, while resting this case specially on the ground that Turner had secured himself by a bill of sale, declared, that where one has been induced to become security at the instance of another, though he thereby renders himself liable to the person to whom the security is given, there is no pretense for saying that he shall be liable to be called upon by the person at whose request he entered into the security.

The case of Thomas v. Cook was where one signed as co-surety, at the request of a surety who agreed to save him harmless. It was held, that the promise to save harmless was a good defense to an action by the promisor.

VOL. II.-45

Bagott v. Mullen.

In the authority referred to in 6 Gill & J. 250, it was held, that the surety who claimed to be discharged did not sign it at the request of his co-surety, but at the request of the principal, and there was no occasion for the court to determine what would have been the law had the facts been otherwise. The same is true of the case in 12 Mass. 98.

In Apgar v. Hiler it was held, that where one of two sureties becomes such at the request of his co-surety and upon his promise that he will be put to no loss, he may recover the whole of what he may have been compelled to pay of his co-surety.

In Daniel v. Ballard it was declared, that one who becomes bound as a surety, at the instance and for the benefit of a co-surety who afterward pays the whole debt, is not liable to him for contribution.

In the case in 2 Ellis & B. the court did not consider this question.

There are other cases where the circumstances are held to rebut the presumption of a promise to contribute between sureties. In Cutter v. Emery, 37 N. H. 567, the first surety gave a bond to indemnify the second surety against the liability he assumed. In Harris v. Brooks, 21 Pick. 195, a parol agreement was held suflicient to discharge a co-surety from contribution. So, also, in Blake v. Cole, 22 Pick. 97.

In all these cases there was something more than a mere request by one surety to another to execute the note or paper as co-surety. There was either a promise, written or verbal, to indemnify, or a taking of security from the principal, and from: either of these circumstances the courts hold such surety released from contribution.

It was held, until near the close of the last century, that the action for contribution between sureties rested alone upon the principles of equity, and could only be enforced in that jurisdiction. But in Cowell v. Edwards, 2 B. & P. 268, in the year 1800, it was observed by the court, that it might then be too late to hold that the action could not be maintained at law. The suit was indebitatus assumpsit for money paid. It may now be regarded as settled that the right of action in such cases arises out of a contract implied in law to contribute among the sureties a ratable proportion of the amount for which all are liable. This claim can be defeated by showing any circumstances which rebut the presumption of such an implied agreement. In Blake v. Cole, supra, it was said, "no

Bagott v. Mullen.

question can be made of the general rule, that if one surety pays the whole debt, or more than his part, he has a right to recover at law a contribution against his co-surety. Batchelder v. Fiske, 17 Mass. 468. The defendant, then, must be charged, unless he can show some defense exempting him from the operation of the general rule. And for this purpose he relies upon the fact that he became surety at the request of the plaintiff's intestate, and upon his verbal promise to indemnify him."

In Warner v. Price, 3 Wend. 397, it was held that where the fact appeared that persons signed as sureties, "they must all be considered co-sureties, unless a state of facts be shown to the court from which it shall appear positively, or by legal intendment, that these defendants intended, as to the subsequent signer, to stand in the character of principals." See, also, Norton v. Coons, 3 Denio, 130, and 2 N. Y. 33.

In the case of McNeil v. Sanford, 3 B. Mon. 11, it was held that the circumstance that the last obligor did not sign until eight months after the cther sureties were bound, was "altogether insufficient to qualify either the actual or legal import and effect of the obligation on its face, and show that he was merely a collateral guarantor of the other obligors, and not a co-obligor with each and both of them."

Are we, then, to follow the broad doctrine declared by Lord Kenyon, and the application of which was, in fact, uncalled for in the case before him a case decided at nisi prius - and never heretofore applied by any court, and hold the surety discharged by the simple request of his co-surety to sign the obligation?

If a surety making the request receive any personal benefit from the execution of the obligation - as where the money raised thereon goes into his hands, or where he has already incurred a liability upon an instrument completed by delivery - we can see a propriety in the court treating the person thus benefited and making the request as a principal, and the person signing at such request as his surety only, and not liable to contribute for his benefit. So, where the signature is upon an express contract to indemnify, the consideration supports the promise and discharges the surety from the legal obligation otherwise resting upon him.

But where parties standing in an equal relation to the principal sign as sureties for that principal, the one at the request of the other, we are not satisfied that any sound principle of law or equity