Burnett v. Millsaps

Cooper, J., delivered the opinion of the court. The sureties on the sheriff’s official bond, and those on his bond as tax collectoi’, were equally bound for his default in paying over the taxes collected, and because the burden was common to both sets of sureties, the right of contribution exists between them. The fact that the sureties on the' official bond were also liable for other acts of the officer, as to which the sureties on his bond as tax collector were not bound, does not affect the mutuality of their obligation as to those acts and defaults for which they were bound. There is nothing in the record to suggest that the sureties on the official bond have suffered^ or will suffer any loss because óf the default of the officer'in the performance of any of his duties for which they alone were bound ; but in no event would such loss or damage relieve them from liability to contribute to the sureties on the other bond, to an amount not greater than the unexhausted penalty of their own. The appellants, who are sureties on the official bond, cannot complain of the action of the Chancellor in holding the sureties on the tax bond liable to contribution, for the damages imposed for the failure on the part of the officer to pay over the taxes collected, for whether it is or is not true that the tax bond was liable for such damages, the official bond certainly was, and the sureties thereon are not injured, but are benefited by the contribution required from the sureties on the tax bond. Thjs question is eliminated from the [337] case by the fact that the tax collector’s bond had been subjected to this liability by the judgment in the suit at law, which judgment is unreversed. If it be conceded that the appellant, Burnett, signed the bond at the request of the appellee, Millsaps (as to which the testimony is conflicting), he is nevertheless liable to contribution at the suit of Millsaps. It is said by some text-writers that if one surety sign at the instance or request of another, he is not liable to contribution at the suit of the surety at whose request he became bound ; but an examination of the authorities cited by them in support of the proposition announced shows that, in most of them, there was an agreement for indemnity, instead of a mere request to sign. In one or two cases the question was presented and decided; but in •most of them in which such language is used, the point was not presented, and the proposition as announced is supported principally by dicta. The decided weight of authority is, that to relieve the surety from liability to contribution theré must be a contract, expressed or implied, for such immunity.- The question is elaborately and carefully examined in two recent cases, in which the authorities cited by the text-writers for the opposing view are reviewed, and the conclusion to which we have arrived ably sustained. Bagott v. Mullen, 32 Ind. 332; McKee v. Campbell, 27 Mich. 497. The Chancellor erred in directing the account to be taken by charging the sureties on the respective bonds with an amount proportionate to the penalties of the bonds. , Within the penalty of the smaller bond the sureties thereon were equally bound with those on the other, and ought to contribute equally to that extent. It is the amount for which they are- bound, and not the form or penalty in which they are bound, tiat is to govern. For the amount of the default, in excess of the penalty of the smaller bond, the sureties thereon are not liable, and therefore that amount ought to be settled between the sureties on the larger bond only, without regard to those on the other. Cherry v. Wilson, 78 N. C. 164, 166. Decree reversed and cause remanded.