Commonwealth v. Cox's Administrator

The opinion of the court was delivered by Lowrie, C. J. The first sureties of the guardian ought to have asked for “ counter securities,” or surety for their own indemnity [444] under the 28th section of the Orphans’ Court Law of 1832; hut instead of that they asked for “ other and further security” under the 22d section; and the court ordered that and it was given. The decree and the bond under it show this and nothing more. The result was, that to the three sureties of the first bond, there were added, by a second bond, two others; and the whole five are all alike bound for a full performance of all the guardian’s duties. A careful examination of the case makes this quite plain. It follows, of course, that all are alike bound to supply the defaults of their principal: Theobald on Pr. and Surety, § 287 ; and the case of Smiton v. Miller, 3 Ross’s Leading Cases 42, shows this. That case is just like this, except that the new surety there was not given in court. It follows further, that, as none of the sureties appear in the ease stated to be insolvent, each is bound for one-fifth : Theobald, § 282. There is no difficulty about the form of the action. The sureties in the first bond paid the whole, and equity subrogates them to the rights of the wards, so far as to allow them to use the second bond to enforce contribution. It was not in law satisfied by the payment by the other sureties, and equity allows them to sue on it. Even if all the sureties had been in' one bond, the paying sureties could now, by the law of England, sue their co-sureties on it, in the name of the obligee, and recover contribution: Act 29th July 1856, § 5 ; 3 Ross’s Leading Cases 945. We need-not say how this would be with us. The plaintiffs are entitled to recover one-fifth from the defendant. Judgment reversed, and judgment for the plaintiffs for $1006.52, with interest from 1st April 1860, and costs.