Lowndes v. Pinckney

Harper, Ch.
I concur, unless with respect to the judgment against Mr. Lowndes. I think the decision of the court was conclusive on him, though he did not appeal. If he had paid by advice of counsel, I should think that he ought to have contribution. McDowall vs. Blake. It might have been shewn that he was guilty of laches in not making the defence he ought to have made. But this was not alleged, nor the complainants called on to meet it, nor was it in any manner in issue. What the plea was, which was made in the court of law, came out only incidentally; the record being produced by the complainants’ own counsel.

Johnston, Ch. and Butler and Frost, JJ. concurred in the general conclusion indicated by the opinion of Chancellor Dunkin, but differed from him with respect to the money received from Dr. Whitridge on his bond, after the expiration of Mr. Elliott’s term of office.
*180O’Neall, J. concurred in the opinion of Chancellor Dunkin in all respects, except that he thought Mr. Lowndes was entitled to contribution from his co-sureties, in the case in which there was a recovery against him for Mrs. Mitchell’s claim.

Joi-iNsoN, Ch.
dissenting. I regret that circumstances which I could not control, prevented my hearing the entire argument in this cause at the hearing here, but having twice before heard it fully argued, first in the circuit court, and again in the Court of Appeals, I feel so fully possessed of all the questions involved, as to justify my expressing a decided opinion upon them ; and I should be satisfied simply to declare my adherence to the decree of the circuit court, but for the conviction that the judgment of this court inculcates principles at war with long settled and universally received rules of law, applicable to a wide range of contracts in general use, in relation to which I propose to add something to what is said in the circuit court decree.

The first question which I propose to consider- is, whether the sureties of Elliott are liable for the moneys received by him under the order of the court of November, 1823, directing “that all the outstanding debts due to the estate of Dr. M’Leod, be placed in the hands of the Commssioner for collection by suit or otherwise,” and under the order of the 1st March, 1823, directing “ that the Commissioner do receive all the papers and money of the estate” (of Robert A. Darby,) “ into his hands, he giving the administratrix a receipt for the same : and that he be directed to place the money at interest, and when the claims in dispute are disposed of, to make a division among the creditors.”

It has not and will not be questioned, that according to the practice in the English Chancery Courts, the duties required of Elliott by these orders properly belonged to a receiver, who is not now, and never was, a standing officer of the court, but a person standing indifferent between the parties, appointed by the court to take the possession and management of lands and other things in controversy, pending the suit, where it was improper to trust either of the parties with it. Here the assets of the estates were taken out of the hands of the executor in one case, and the administratrix in the other, and put into the hands of the Commissioner to be administered, which was unauthorized unless they were unfit to retain them, and ought, then, according to the English practice, to have been put in the hands of a receiver. But I am willing to concede that, under the usage which universally prevailed before the Act of 1821, 7 Stat. 323, *181these duties were properly assignable to the Master or Commissioner of the Court, and appertained to the duties of his office, and that his sureties would have been liable for any defalcation in the execution of them. If, however, I have not grossly misinterpreted that Act, it was intended to reform that practice. It provides, “ that whenever hereafter the Master or Commissioner in Equity in this State shall be appointed a receiver of the Court of Equity, and shall accept such appointment, he shall, before he enters upon the duties of such office, duly execute a bond to the Judges of the Court of Equity, with two or more good and sufficient sureties, to be approved of by the court making the order, in a sum equal to twice the value of the estate and effects intrusted to him, conditioned for the faithful performance of his duty as receiver, which bond shall be kept among the records of the Court of Equity, and also recorded by the Register, in a book to be kept for that purpose in every court; and a copy of said bond, certified by said Register, shall be delivered by him, on demand, to every party interested in said funds; and such party, or parties, is and are hereby authorized to institute a suit at law on such certified copy.” (fee.

Before the passage of this Act, the Master and Commissioners of the court were, under the usage before refered to, habitually appointed by the court to do the duties required of a receiver, in cases where it was necessary and where another suitable person could not be conveniently obtained, without requiring the security provided for in the Act. But the case under consideration furnishes two examples in which a Commissioner has been appointed to discharge these duties, without having been required to give the security, and there are doubtless many others, and it has been insisted, in the discussion of this case, that the Act did not divest the court of the authority to appoint the Commissioner receiver .under the usage as before, and that the security required was intended to be in aid of the official bond, and that consequently the Commissioner, in that character, was bound to obey the order of the court.

I do not know how to meet this argument better than by re-fering to the terms of the Act itself. Before that, the Commissioner had been required to perform the duties of receiver without giving security, and the Act, if it means any thing, provides that he shall no longer perform these duties without giving the security. That if he shall accept such “appointment” ! — not the office of Commissioner, but of receiver, — “ he shall, *182before he enters upon the duties of such office” (not of Commissioner but of receiver,) “duly execute a bond” <fec., and if the legislature had intended to declare that the Commissioner should no longer discharge the duties of receiver, I am at a loss for language that would more clearly express the idea, qualified only by the condition that he should give bond and security.

The fact that the court made the orders under which Elliott took possession of the assets, is relied on, as refering these duties to his office of Commissioner of the court, and therefore his sureties are liable.

I have before shewn, that the Legislature has declared that they shall not appertain to that office, and that they properly appertain to the office of receiver; and although the orders under which he acted do not entitle him receiver, the omission to do so neither imposes on him the duty, or authorizes him to act in that character, without giving the security. Any other construction would operate as a repeal of the Act. Leave out the title of receiver, and according to the construction contended for, you may impose on the Master or Commissioner all the duties of receiver.

But it has been said, that the act has been done under the authority of the court, and it has been asked in argument, whether the parties will be permitted to suffer loss by these means, and I fear that in our sympathy for suffering suitors, we have lost sight of the rights of Elliott’s sureties. But I will ask in reply, whose fault is it that such orders were made ? Will any one who has examined the Act, believe that any Chancellor who ever presided on this or any other bench would have made such orders without requiring security, if it had been asked by any one of the parties or their solicitors ? It is too clear to admit of a question, and the necessary inference is, that they were made by the assent of the parties. That ought not to be permitted to operate as a wrong to Elliott’s sureties.

The history of the Act of 1821, alluded to in the circuit court decree, has been refered to, as furnishing a clue to the interpretation of the Act, and parts of several of the subsequent clauses have been relied on as shewing that, under the usage of the court, the commissions of the Master or Commissioner were doubled or trebled, in passing through the hands of a receiver, instead of the Commissioner or Master, and the Act was mainly intended to correct the abuse of their powers over the subject. I concede in extenso the rule, that to ascertain the true meaning *183of an Act of the Legislature, it is admissible to look into the history of the times at which it was passed, to ascertain the evils that were intended to be remedied, and to examine into not only all the clauses of the same Act, but all other Acts on the same subject, and to read them as one Act. But that is only admissible where the terms employed are of doubtful import, or where the provisions of the same Act are inconsistent, and never can be resorted to to contravene a plain and positive enactment. Does any one doubt what the Legislature meant when they said that no “Master or Commissioner in Equity shall be appointed a receiver,” without giving bond and security 7 No ! that would control the usage, and-you look in vain through this Act to find any thing inconsistent with it.

I come now to the consideration of a question which I regard of much more importance, because its decision is calculated to operate not only upon the particular case, but upon a numerous class of contracts. It is, whether the sureties of Elliott are liable for the money received by him on Dr. Whit-ridge’s bond.

The most prominent condition of Elliot’s official bond is, that he shall faithfully discharge the duties of the office of Commissioner in Equity, during his continuance in office. The duties to be discharged are those which appertain to the office, as prescribed by positive enactments of the Legislature, and the usages of the court. Amongst them, and immediately applicable to this question, the Act of 1821, befor-e refered to, requires that he should deliver over to his successor “all the papers and documents appertaining to his office, together with all the moneys, bonds, notes,” <fcc. “ within twenty days after the date of the commission of such successor.” Dr. Whitridge’s bond certainly appertained to the office of Commissioner, and was in the possession of Elliott at the time his office expired. He neglected to deliver it over to his successor within the time prescribed by the Act, and I concede, at once, that this was a defalcation for which his sureties were responsible. But the question-arises, what injury did the legatees of Dr. M’Leod sustain by this neglect'? If the sureties had been immediately sued on their bond, they, the plaintiffs, might have been compelled to submit the condition to a jury to ascertain the damages, and if the sureties had held up the bond in court ready to be delivered to the plaintiffs, or had furnished evidence of its existence, and pointed out the way of recovering the amount', what jury would *184have given more than nominal damages against the sureties 1 Suppose the bond unpaid, and the sureties, even now, sued upon Elliott’s official bond, and, on submitting the condition to a jury, they were able to shew that Dr. Whitridge was abundantly able to pay his bond, and that, notwithstanding the great delay, there was no obstruction to a recovery against him, would the jury, in the wide discretion which they are entitled to exercise in questions of damages, find against them the whole amount of Dr. Whitridge’s indebtedness to the estate of M’Leod, still leaving the legatees to recover the same amount from him, with interest on both sums from the time the b ond was due ? And yet this court, in the exercise of Chancery powers, are, we are told, authorized to sit in judgment to ascertain the damages, admitting no claims to mitigation.

But it has been said, that this bond has been paid to Elliott, and therefore his sureties are liable. That was after the expiration of his term of office, and the authority to receive it cannot be traced to any connexion with his duties while in office. It is true, that the bond was made payable, in the usual form, to him and his successors in office, but these terms, - in themselves, as well as the nature of the transaction, point to the successor as the person entitled to receive the money after Elliott went out of office. And again it is said, that his possession of the bond after he went out of office, authorized Whitridge to pay him the money; and cases have been referred to, to shew that possession of a bond- or note is prima facie evidence of authority to receive the contents. Take that for all it is worth— no case can be found in which it has been even surmised that a debtor would be protected in paying money due on a bond or note, to one whom he knew was not entitled to receive it, although he might be in possession of the bond or note. Now, the Act of 1821 is a public Act, which every one is bound to know, nor will ignorance of it be received even as an extenuation. That Act required that Elliott should turn over the bond ‘to his successor within a limited time, indicating, as clearly as language can, that his power over it, and his right to receive the money, were at an end ; and in legal eifect operated as a notice to Dr. Whitridge, as effectually as if the whole Act had been stamped on the bond in capital letters. The true question then, is, whether the sureties, who were not in the way to know, and will not be presumed to know, that Elliott had the bond in his possession, or Dr. Whitridge, who paid the money to him, *185knowing that he had no authority to receive it, shall lose the money.

I have before remarked, that Elliott’s receipt of the money could not be traced to any connexion with his duties during his continuance in office. His office ended, and his liability attached, when he neglected to deliver over Whitridge’s bond to his successor within the time prescribed by the Act; and it will be difficult to find any principle or dictum by which his sureties would be held liable for any act done by him afterwards. He had ceased to be commissioner, and was acting sui juris, and if in this case the Act be referred to his powers as commissioner, he might, if alive, go on and execute every order of the court made during his continuance in office. If such a principle be established, the sheriffs of the various districts in the State might go on after the termination of their offices, and enforce and collect the executions in their offices, on the responsibilities of their sureties; and so of clerks, ordinaries, guardians and others acting in a fiduciary character, who are required to give bond and security for the faithful discharge of their duties. Having once assumed their offices or duties, their sureties would remain liable in all time, for any act they may have done or omitted, under color of their power or authority ; notwithstanding their offices had terminated, or their trusts had been discharged. On this point, I may rely with confidence on the judgment of the court, as to the liability of Elliott’s sureties, for the proceeds of the sale of Folly Island, under the order of the court in ex parte Mary S. Darby et al. That order was made whilst Elliott remained in office ; and because he sold the Island afterwards, and without authority, it is held that his sureties are not liable for the money received ; and I confess that I am utterly unable to distinguish between the cases.

It is now received as a maxim, that sureties are favored in all matters of doubtful right. I agree, that generally, they are not discharged by the mere passive neglect of the creditor to enforce his rights against their principal; yet, there are numerous instances in which active diligence is required, of which the Law merchant furnishes some examples. According to that, the holder of a bill of exchange, or promissory note, must demand payment, and if it is dishonored, give notice to the indorser, who stands in the relation of surety, within a limited time, to entitle him to recover against the indorser; and I am much inclined to think, that a rule founded on the same principle might *186be usefully applied to cases like the present. Here the legatees of M'Leod must have known that Elliott had possession, of the bond of Dr. Whitridge, for they were' parties to the proceeding. They might have compelled him to turn it over to his successor, upon a rule to shew cause, or recovered it in an action of deti-nue. The sureties, as before remarked, were not in a situation to- know that such a bond existed, nor had they any clue by which to direct their enquiries in relation to it. Elliott might have concealed it from them, in despite of all their enquiries, and it would have been impertinent in them to file a bill for a discovery, on the mere supposition that he had violated -the duties oí his office, and thereby exposed them to loss; and now, after a lapse of near twenty years, when all hope of their being reimbursed is lost, they are called on to pay a large sum, which, if lost at all, has been lost by the negligence of the parties claiming.

Johnston, Ch. and Butler and Frost, JJ. concurred in so much of this opinion as declares that the sureties of Elliott are not liable for the money which he received on Dr. Whitridge’s bond.

Curia, per Dunkin', Ch.
What were the precise powers and duties of a master in chancery in England, in 1721, it is not very easy now to ascertain. By the Stat. 12 Geo. 1, c. 32, the office of Accountant General was established. This statute was passed in 1725, four years subsequent to the organization of a Court of Chancery in South Carolina. The Accountant General stands in the place of the master and usher, and is required “to do all such masters and things relating to the delivery of the suitors’ money and effects into the Bank, (fee., and keeping accounts, «fee. as by the orders of the Court of Chancery are to be done by the masters and usher. And the masters and usher were to make up their accounts with the Accountant General, and pay into the Bank all money remaining, in their hands, to be placed to the account of the Accountant General ; also all mortgages, tallies and securities, standing in the masters’s or usher’s name in trust for the suitors, to be assigned to the Accountant General.” 1 Har. Ch. Pr. 64, (edition 1796.)

The office of Accountant General has never been established in this country. But we are all of opinion that the duties required by the orders of the court in the cases of McLeod and Darby, were such as had been usually imposed on the master, or commissioner, by the practice of the court from its earliest organization. Many cases have been cited from the reports, commencing, some of them, in 1785; and the rule adopted in 1811, indicates, very clearly, what was the practice of the court, and the propriety of regulating it. It is there provided that “the master and commissioners in Equity shall, at the first sitting of their respective courts in every year, severally make report to the court of the different estates in their hands under and by virtue of any decree or order of the court, with a full and particular account of the moneys received and paid relating to the said estates.”

Now, whatever may have been the appropriate and peculiar duties of the masters in chancery in England, prior to 1721, if it had been the practice of the Court of Equity, in South Carolina, since its first organization, to impose on the master duties which more properly belong to a receiver, the master, elected under a presumed knowledge of this practice, is bound to per*174form those duties, and for any neglect or malfeasance, the sureties on his official bond are responsible to the party aggrieved.

In a new country, and in courts of limited business, the duties of several officers are frequently united in one. In every district of the State except Charleston, the commissioner of the court is. also register.

In the Circuit Court of the United States the clerk discharges all the duties of commissioner and register in Equity. In large banking institutions there is a variety of officers, each with his appropriate duties, President, Cashier, Tellers, book keeper, &c. but in smaller institutions, the duties of cashier and teller, &c. in themselves perfectly distinct, are frequently united, and an officer, elected as cashier, is bound for any neglect or defalcation as teller. Such was the decision in Minor vs. The Mechanics Bank of Alexandria, 1 Pet. 46. Minor had been elected cashier of the bank, and given bond for the faithful discharge of his duties as cashier, but under an existing regulation of the directors, the cashier was also required to discharge the duties of teller of the bank. In an action against the surities for the default of Minor as teller, it was determined that they were responsible; the Supreme Court of the United States holding, that the official bond of the cashier must be construed to cover all defaults in duty, which are annexed to the office from time to time, by those who are authorized to control the affairs of the bank, and the sureties in a bond are presumed to enter into a contract with reference to the rights and authorities of the President and Directors under the charter, dec. So, here, the practice of the court having been to require of the master or commissioner to discharge duties which may be said to belong more properly to a receiver, both that officer and his sureties must be presumed to have contracted with reference to that practice, and are bound by it. It is not easy always to define with precision what are the duties of a receiver, as distinguished from those of a master or commissioner. Since the establishment of -the office of Accountant General, in 1725, the practice of the Court of Chancery in England can afford us no light, and the practice in South Carolina has certainly been to unite the duties in the same officer. This difficulty, and some irregularities which grew out of it, led, it is believed, to the passage of the Act of Assembly of 1821, 7 Stat. 323. As the fee bill allowed commissions to the master or commissioner only in the case of sales, and then only of ope per cent, after the first $100, it was contended, for a short *175period prior to the adoption of that law, that in every other case, when moneys or securities for debt passed through the hands of the commissioner, he was a receiver, and not within the provision of the fee bill, and therefore entitled to the ordinary compensation of 2 1-2 per cent, on receiving and 2 1-2 per cent on paying over; and that where securities for debt were turned over, the commissioner, as receiver, was entitled to the same compensation as if money was paid by him. Nearly every clause of the Act of 1821, points to the evil and provides a remedy. It’ is impossible not to perceive that the law was passed, not in ease of the commissioner and sureties, but for the protection of the. suitor. Whenever the master or commissioner should thereafter assume the character, or claim the compensation, of a receiver, it should be his duty to shew that he had complied with the provisions of that law by giving bond and security as such. The Act also prescribes his duties, and provides his compensation, when so appointed. The fourth clause provides that “every master or commissioner in equity shall keep a book, in which he shall open and keep a regular account with every individual or estate on whose account, he has or shall hereafter receive any moneys, bonds, notes, stock, choses in action, or other property of any description whatsoever, by virtue of his office, or of his appointment as receiver,” (fee. in which account he shall credit the parties or estates with every thing received, and debit all payments on account of said parties or estates; contemplating, evidently, that the master or commissioser was still to continue to discharge the duties which had been ordinarily imposed on him, and providing that his accounts should be kept in precisely the same way when the duties were discharged officially as when they were discharged by virtue of his appointment as receiver.

The Act of 1821 was manifestly intended to afford no facility to the appointment of the master or commissioner as receiver. It may perhaps be worthy of consideration whether it ought not to be expressly prohibited by law, and a separate office of receiver created. In England it is never permitted, and for the very satisfactory reason, that the master is the proper officer to audit the accounts of the receiver. But considering the long established usage of the country, it is regarded as important for the character of the court, and due to the confidence reposed in it by the community, that, whenever the master or commissioner takes charge of funds or estates, under an order or decree of the *176court, he should be held to act officially, and be officially responsible, unless he has, by the order or decree, been expressly appointed a receiver, and has given bond and security as required by the Act of 1821.

In regard to the estate of McLeod there can be no doubt of the original liability of the commissioner. Under the Act of 1791, 7 Stat. 259, it is made the duty of the master or commissioner, in the several districts of the State, “to make all sales under the decree of the court.” By the order of March 1823, the corhmissioner was directed to sell all the estate, real and personal, of Dr. McLeod, on the terms specified in the order. In April 1823, Mr. Elliott made the sale, and, among other things, received the bond of Dr. Whitridge, as one of the purchasers, for $17,400. For all sums received on these sales, during his official term, it is not questioned that his sureties are liable, unless they were paid away or disposed of under the authority of the court. Mr. Elliott’s term of office expired on the 28th December, 1825. Prior to that period he had received seven thous- and dollars on the bond of Dr. Whitridge, and within the following six months he received various other sums, amounting altogether to about nine thousand dollars more. In subsequent years he received small sums, amounting altogether to about six hundred dollars. The last payment was in 1833, about which time the bond was transfered to Mr. Gray. It appears by the report of Mr. Gray, that the balance appearing to be due on the bond was subsequently paid to him, and the bond delivered up to the obligor, Dr. Whitridge.

This bill is prefered by the complainant, one of the sureties of Mr. Elliott, requiring, amongst other things, that all his official creditors should establish their demands. The creditor is, of course, entitled, in this court, and under these circumstances, to rely on any breach of the condition in Mr. Elliott’s official bond. By the sixth section of the Act of 1821, it is provided “that, on the resignation, dismissal from office, or expiration of the term of office, of any master, commissioner or register in Equity, all the papers and documents appertaining to his said office, together with all the moneys, bonds, notes, certificates of stock, or other property, received and held by him under the authority of the said court, shall be delivered over by him to his successor in office, within twenty days after the date of the commission of such successorand by the last clause of the Act it is declared “that should any master, commissioner or register in Equity, *177violate or neglect any of the duties prescribed to him by this Act, he may be punished by the Court of Equity, as for a contempt, and his official bond may also be sued by any party aggrieved by his said violation or neglect of duty.”

The bond of Dr. Whitridge was among “the papers and documents appertaining to his office,” in the possession of Mr. Elliott when his term expired. It was not delivered over to his successor within the period prescribed by law, nor for six years after-wards. In the mean time, he was enabled to hold himself out as the holder of the bond, and ostensibly entitled to receive payment of it, and did receive payment of the greater part of the bond. In the judgment of the court, the sureties of Mr. Elliott are responsible for the sums thus received by him, in consequence of this neglect or violation of duty. It is not an answer to say, that his successsor, Mr. Gray, or the obligor, Dr. Whitridge, might be required to pay these sums. If Mr. Elliott had wilfully burnt the bond, or collusively delivered it up to Dr. Whit-ridge, without payment, during his official term, could he or his sureties turn the suitor over to an action at law on a lost or destroyed bond, or to a bill in- chancery to set up the security thus improperly cancelled ? We think not. There was, or ought to have been, a surety to Dr. Whitridge’s bond, whose claim to protection might well add to the embarrassment. We do not think that a suitor should be thus driven to encounter these difficulties created by the neglect of official duty by the commissioner, for the faithful discharge of which, not the suitor,, but the sureties on his official bond, had covenanted. It may be that Mr. Elliott supposed himself entitled to retain the bond, and receive the money, either as receiver or as private agent of the parties, and that he was not bound to deliver it over to his successor, under the provisions of the Act of 1.821. But this error of judgment does not alter the consequences of the act.

The remarks heretofore made decide the question as to the liability of the sureties for the funds of the estate of, R. A. Darby. * It may be, as was suggested at the bar, that the bill was for the appointment of a receiver. The first order directed that the funds should be paid into the bank of the State as receiver. But the order of March, 1823, reciting that the previous orders could not be carried into effect, directs “ that the Commissioner -in Equity do receive all the papers and money of the estate into his hands, he giving the administratrix a receipt for the same, and that he be directed to place the money at *178interest, and. when the claims in dispute are disposed of, to make a division among the creditors.” For the reasons before stated we think the funds received under this order were held in his official capacity. According to the decision in the Treasurers vs. Bates, 2 Bail. 362, the acknowledgement to Packard after the Commissioner went out of office, is sufficient prima facie evidence against his sureties.

The court concur entirely with the Chancellor in regard to the sales of Folly Island, and do not deem it necessary to add any thing to what is said in the decree.

So, too, in regard to the liability of the co-sureties to contribute to the complainants on account of the payment of Mrs. Mitchell’s judgment, we think the decree of the circuit court must stand. The principle on which co-sureties are bound to contribute, is thus stated by C. J. Marshall, in Lidderdale vs. Robinson, 2 Brockenb. C. C. R. 159, as the result of all the cases ; “where a person has paid money for which others were responsible, the equitable claim which such payment gives him on those who were so responsible, shall be clothed with the legal garb with which the contract he has discharged was invested, and he shall be substituted, to every equitable extent and purpose, in the place of the creditor whose claim he has discharged. This principle of substitution is completely established in the books, and, being established, it must apply to all persons who are parties to the security, so far as is equitable. The cases suppose the surety to stand in the place of the creditor, as completely as if the instrument had been transfered to him, or to a trustee for his use.” Giving to the complainants’s testator the full benefit of this principle, and placing him quoad his claim on the co-sureties, on the most favored footing of the original creditor, it has just been determined that the original creditor, Mrs. Mitchell, was entitled to recover nothing.

But it is said this payment was made by the complainants’s testator, after a trial at law, and the judgment of the court establishing his liability. On inspection of the record, which has been submitted to us, it appears that the defence offered was, that Mr. Elliott acted as receiver in this transaction ; and on that issue we have just held that the decision was .correct. But no authority was adduced here, to shew that the co-sureties were bound by that judgment, or that it was evidence of their liability. They were not parties to the record, nor does it appear that they were privies. “ It is a general rule,” says Mr. *179Starkie (1 Ev. 195) “that a verdict shall not be used as evidence against a man where the opposite verdict would not have been evidence for him.” If Mrs. Mitchell had failed to recover against Mr. Lowndes in consequence of any defect in proof, or other cause, it is not perceived that the verdict could be given in evidence to defeat a recovery, in her actions against the co-sureties. So, if a co-surety has a receipt in full, or other satisfactory defence, it would not be contended that a verdict against the other surety could debar the use or the validity of the defence. According to Lidderdale vs. Robinson, this is the criterion ; — the co-surety takes the place of the original creditor, and may be resisted on the same principles and in the same way.

We are also of opinion that this claim for contribution must stand on the pleadings and proof already adduced. Counsel differ on the question whether this claim was resisted in the circuit court, and the defendant objects to the introduction of any new testimony. Under these circumstances, we do not think that the mere suggestion of the complainants, that a different case could be established, would warrant this court in opening the decree on this point, and directing a further inquiry.

It is ordered, that the decree of the circuit court be modified, and the account of the Master reformed, according to the principles of this decree.

Evans and Wardlaw, JJ. concurred.
Richardson, J. absent at the hearing propter invalitudinem.