
    McNeil vs Sanford.
    Assumpsit.
    Error to the Boone Circuit.
    
      Case 6.
    The case stated..
    
      Co-sureties. Contribution. Evidence.
    
    
      September 9.
   Chief Justice Robertson

delivered, the opinion of the Court.

McNeil having paid a debt which he owed only as a surety for one Lemon, who had become insolvent, sued Sanford in assumpsit, alledging that he was a co-surety with him.

On the trial on the general issue, it appeared that the debt discharged by McNeil was due on a joint and several obligation, signed by Lemon, McNeil and Sanford. And, after proof of Lemon’s insolvency, and of the fact that he was principal, and- the other obligors sureties only, and that McNeil had been compelled to pay the whole debt; the obligee testified, that for money loaned to Lemon, he had taken the bond originally as signed only by Lemon and McNeil, but that about eight months after it became due, he told Lemon that “he must get additional security on said note or he must pay up the -money,” and that Lemon took the note and shortly afterwards returned it with the additional and genuine signature of Sanford as a co-obligor.

Iastruciionofthe Court, — verdict and judgment.

The fact that on e signed as surety, a joint and several note, eight months after the other obligors had become bound, is insufficient to show that the undertaking was merely as- a collateral guarantor of the other obligors, and in case there is principal and other surety, the presumption is, that the last is a supplemental surety.

The Circuit Court excluded so much of the obligee’s testimony as is included within the foregoing marks of quotation, and instructed the jury to find for Sanford, if they believed that eight months after the note had been executed by Lemon and McNeil, and delivered to the obligee as their joint and several obligation, Sanford had added his name as an apparent co-obligor. Verdict and judgment having been accordingly rendered in bar of the action, those decisions by the Circuit Judge, are now to be revised.

Were it admitted that there was no error in the exclusion of testimony, still we should be of the opinion that the instruction to the.jury was erroneous, for the style of the note imports that Sanford was, in all respects, a coequal obligor, and the simple fact' that his name was not subscribed until eight months after’his co-obligors had become bound, would be altogether insufficient to qualify either the actual or legal import and effect of the obligation on. its face, ampshow that he was merely a collateral guarantor of the other obligors, and not a co-obligor with each and both of them. And when it appears also, that Lemon was sole principal, the legal deduction is, that the other obligors were co-sureties, notwithstanding the fact that Sanford’s signature was long posterior to that of McNeil. The mere fact of posteriority would imply that Sanford was a supplemental surety for Lemon, and not that he was only the surety for both McNeil and Lemon. There is neither proof nor presumption, that McNeil had any agency in procuring the signature of Sanford, or was, in any way, privy to it, or sought or even desired the indulgence which it procured for Lemon. Then, had Sanford even become bound with Lemon in a new and separate bond, he would, in equity, have been a co-surety with McNeil, and equally bound to contribute to their common buithen — and, of course, a payment of the whole debt by McNeil, would have been deemed a payment to the joint use of himself and Sanford, and a resulting obligation to contribute one half in the event of Lemon's insolvency, would have been implied by law, a fortiori, the like obligation results from the facts as they are.

In a suit by one surety against another, the original obligee, to whom the debt has been paid, is a competentwitness.

L. Hord for plaintiff: Cates Lindsey for defendant.

But, in our judgment, the Circuit Judge erred also, in excluding the testimony — 1st, Because that testimony was admissible to increase the presumption of a binding consideration of forbearance, 'which might be inferred from the excluded facts — and 2d, Because it would not only tend to show that Sanford signed the bond at the instance of Lemon alone, but would fortify the legal presumption, arising on the face of the note, that he was understood and intended to be a co-surety with McNeil.

Wherefore, the judgment must be reversed, and the cause remanded fora new trial.  