
    William Craig and Jacob Angle, Jr., vs. Henry Ankeney.
    
    December 1846.
    Where a cause is set down for final hearing upon bill and answer, the averments of the bill are cjualified by those in the answer.
    Where two parties- are equally bound by separate instruments, under seal, as securities, for the pajunent of the same debt, and- a payment by one redounds to tire discharge of the other, the one, making the payment, may recover by way of contribution, either at law, or in equity.
    Parties equally boiind as sureties by different instruments'for the same debt, may still be liable to each other for contribution. The doctrine of contribution is not founded on contract, but upGn an implied equity resting upon natural justiee, and- sound morality.
    Where parties are so bound, it would be against equity to permit one to recover from the other, more than a moiety of the amount paid by him, in satisfaction of a debt; for the payment of which both are" equally responsible,
    A court of chancery neVer w-ill,- against equity and conscience, interpose by way of injunction, to arrest the- progress of proceedings at law, unless required to do so upon principles of public policy.
    One security cannot', by injunction, arrest the proceedings at law of his co-security against him, for contribution, unless he tenders the principal and interest due such co-seourily, who had paid the principal'debtor; or allege, that he was ready and willing to bring the- same into court to be paid to him, as a condition of the court’s interference.
    Appeal from ifie Equity side of Washington county court.
    On the 25th of March, 1844, Henry Ankeney, filed his bill against William Craig and Jacob Angle, Jr., alleging, that about the 25th January 1842, Jacob H. Barnett called on him, saying, he was indebted to a certain William Craig,. 
      in the sum of $263, and desired your orator to become his surety in a single bill, to said Craig, for that amount; that he did become surety for said B., on said note, payable to C. That when said note was taken by said Barnett to said Craig, he, the said Q-aig, refused to accept the same, saying, the debt due to him by said Barnett, was well secured by a certain Jacob Angle, Jr., who was security to him for said Barnett. That soon thereafter, the said Barnett become heavily embarrassed, and the said Angle becoming uneasy on account of his liability for him, and the said note not being destroyed, as it should have been when Craig refused to take the same, applied to the said Craig, requesting him to assign said note to him, which the said Craig at first was unwilling to do, he having no interest in the same, but at length, by the importunity of the said Angle, the said Craig did assign the same to him; the said Angle, after the refusal of the said Craig to accept the same, obtained and retained possession of said note, having so obtained possession of said note and assignment, has caused suit to be instituted on said note in the name of the said Craig, the legal plaintiff, for his use, which said suit is now pending in Washington county court, and stands for trial at the March term ensuing. And your orator exhibits a copy of said note, which he prays may be taken as part of his bill, viz:—
    “$263. — Twelve months after date, we, or either of us, promise to pay William Craig, or order, the sum of $263, for value received, this 25th day of January 1842, with interest from date. J. H. Barnett, ( Seal. )
    Henry Ankeney, ( Seal. )”
    On the back of the same is the following endorsement:—
    “November 9th, 1843. I hereby sign my right and title of the within note to Mr. Jacob Angle, Jr.
    
    Wm. Craig.”
    Prayer for subpoena and injunction, forbidding the prosecution of the action at law.
    On the 26th March 1844, Buchanan, A. J., ordered, that an injunction issue, in pursuance of the prayer of the within bill.
    
      The answer of W. Craig is omitted, as not material.
    The answer of Jacob Angle, Jr., set forth, that it is true, as stated in said bill, that a certain J. H. B., was indebted to a certain W. C., about the 25th January 1843, in the sum of, &c.,fhat in or about the month of October 1840, the said Jacob II. Barnett, and a certain Daniel M. Bowles, were partners; that in or about the month of October 1840, the said Bowles, as one of the said partners aforesaid, purchased from the said Craig a quantity of com, amounting to the sum of $250.57; that after said corn had been purchased, an arrangement was made between the said B. and B., by which the said Barnett was to take upon himself the payment of the said debt of said firm, to said Craig; that the said Barnett called upon this defendant, and requsted him to become his security to said Craig, for the amount of money owing to him for said com, and the said Barnett agreed and promised, to and with this defendant, that if he, this defendant, would become his security, as aforesaid, for said sum of money, to said Craig, that he, the said Barnett, would give to this defendant a note or obligation, to be signed by himself, the said H. A., and a certain Henry Firey, as his securities, by which this defendant should be fully indemnified and saved harmless, for any risk or liability which he would incur, as said Barnett's surety to said Craig, for the money owing him. That upon and in consideration of this promise and undertaking of the said Barnett, to furnish this defendant with the indemnity aforesaid, this defendant did agree to become, and did become, the security of the said Barnett to the said Craig, for the debt owing to him for said corn; and the said Craig, upon this defendant-becoming the security of the said Barnett, as aforesaid, agreed to give a reasonable time for the payment of said debt. And this defendant further saith, that the said Barnett not having paid said C. for the com, he was called on by said C. several times, in the fail of 1841; that in the fall of 1841, this defendant promised the said C., that if said Barnett did not pay him the money owing for said com, before the 1st January 1842, that he, this defendant, would give to said C. his own note, as said Barnett's security, for the amount of said debt. That said Barnett not having paid said Craig, by the 1st January 1842, this defendant did, in the early part of January 1842, give to the said Craig as security of said Barnett, his own note for the amount of said debt; no note or obligation having been before given to said Craig for said debt, either by this defendant or said Barnett. And this defendant further saith, that said Craig did not agree to receive the note of this defendant, as an absolute payment of said Barnett’s debt; nor did he agree to release said Barnett from said debt, in consideration of receiving this defendant’s note, as aforesaid; but it was the understanding of this defendant., as well as the said Craig, that said Barnett was still liable for said debt. And this defendant further answering saith, that he had before called on said Barnett, either to pay said Craig for the com purchased, as aforesaid, or to give to this defendant the obligation of said Barnett, with said Ankeney and Firey, as security, according to the original agreement above mentioned, made when this defendant agreed to become thejsaid Barnett’s security, as aforesaid. That 'having pressed the said B. for the indemnity aforesaid, the said B. brought to this defendant, about the last of .January 1842, the note .executed by himself and the said Henry Ankeney, for the payment of $263, the amount of principal and interest then supposed to be due for said com, in favor of said Craig, dated 26th January 1842; a true copy of which is exhibited by the complainant with his bill of complaint. That when this defendant saw this note was made payable to said Craig, he objected to receiving of it; but the said Barnett proposed, to save himself the trouble of getting a new note, that this defendant should take it to said Craig, and get him to assign it to this defendant, and this defendant finally agreed with the said Barnett, to take said note with said Ankeney .as security as aforesaid, as his indemnity, and that he would get it assigned to him by said Craig, as first suggested by said Barnett. This defendant and the said Barnett, both supposing that said C. would have no objection to make such assignment, as the said C. then held the note of this defendant for the amount of said Barnett’s debt, which he had received several weeks before the note of the said Barnett and Ankeney, was executed to the said Craig: that said note was then left in the possession of this defendant. And this defendant expressly denies the allegation in said bill of complaint, to wit, that when said note was taken to said Craig, he, the said Craig, refused to accept the same, saying, the debt due to him by said Barnett, was well secured by a certain Jacob Angle, Jr., who was security to him for said Barnett. This defendant denies that the said B. ever did take said note to said C., or that C. did refuse, as aforesaid, to accept the same. On the contrary thereof this defendant alleges, that if said B. had taken said note to said C., he has no doubt that said C. would have accepted it, although the said C. might have considered the security given to him by this defendant was an ample security. And this defendant further saith, that after said B. had delivered the said note to him, with the understanding and agreement, that this defendant should get the said C. to assign it to him, this defendant retained possession. And in the month of August 1843, this defendant called on the said Ankeney, and requested him to make payment of the money due and owing on said note; that he then informed said Ankeney, that he held and owned said note, and that the money due and owing on said note was coming to this defendant. That this said defendant pressed the said Ankeney for the payment of said note; that the said Ankeney, so far from making any objection to the payment of said note, promised that he would attend to it, and expressed his thanks to this defendant for notifying him that said note had not been paid; and further stated to this defendant, that he knew said B. had plenty of property by which he could secure himself.
    And this defendant denies that said C. ever refused to assign said note to him, as alleged in said bill of complaint, or that this defendant ever used any importunities with the said C. to obtain from him such assignment; on the contrary thereof this defendant alleges, that said C. did not hesitate to make such assignment, as soon as he was informed of the circumstances under which the said note had been left, by said Barnett, in the possession of this defendant; and this defendant further states, that he sent said note to said Craig on or about the 9th of November 1843, with a request, that said O. would put a written assignment thereon, which he did without hesitation, on the day and year last aforesaid, and then sent said note back to this defendant. That said Barnett and Ankeney having failed to pay said note, this defendant had a suit brought upon it in Washington county court, where it is now pending, as alleged in said bill of complaint. And this defendant saith, that he hath fully paid and satisfied the said Craig the amount of the note which he gave to said Craig, as the security of said Barnett. And this defendant further saith, that at the time the said Barnett delivered to him the said note for $263, with the said Ankeney, as security thereon, the said Barnett was perfectly able to pay said Craig for said corn, or to have given this defendant ample security; but when this defendant received said note, with said Ankeney as security, he considered himself safe, and did not ask of said Barnett any other security. The said Ankeney, by executing said note and delivering it to said Barnett, prevented this defendant from taking other measures to indemnify himself in any other way for his securityship for said Barnett.
    
    The cause having been set down for a hearing on bill and answer, it was decreed by (Buchanan and Marshall, A. J.,) that the injunction heretofore issued in this case, be, and the same is hereby made perpetual, and that complainant be allowed his costs, to be taxed by the clerk of this court.
    The defendants appealed to this court.
    The cause was argued before Archer, O. J., Dorsey, Magruder and Martin, J.
    By Jervis Spencer for the appellants, and
    By Randall for the appellee.
   Dorsey, J.,

delivered the opinion of this court.

According to the facts, as we are bound to assume them to be, in the decision of this case, which has been set down for final hearing on bill and answer; the averments in the bill, qualified as they are by the answers of the appellant, Angle, are so defective, and insufficient, that the right of the appellant to the aid of a court of equity, may well be regarded as a matter of great doubt, even under the curing provisions of the acts of Assembly, which prevent this court from reversing any decree, or dismissing any appeal on the ground of a want of jurisdiction, or the insufficiency of the averments in the bill; unless such objections to the proceedings were raised in the court below.

The answer of Angle disproves the allegation in the bill, that the single bill, to prevent the recovery of which the injunction in this case was granted, was rejected by Craig, as a security for his debt. But that answer fails to establish the fact, that Ankeney, in signing this bill, intended it as an indemnity or counter security to Angle, for his liability to Craig; or that, as far as Ankeney was concerned, it was intended for any other purpose, than as a security to Craig, for the debt due to him by Barnetl. Angle, and Ankeney, must, then, each be regarded as security to Craig, for the same debt, being equally bound, by separate instruments, for the payment of the whole debt. A payment thereof, by one of them, redounded with equal benefit, to the discharge of the other. Upon every principle, therefore, of morality, equity, and common justice, if one of them paid the whole debt, he had a right, by way of contribution, as well in a court of law, as in chancery, to recover, from the other security, a moiety of the sum paid.

It was contended in the argument, that Angle could make no claim to contribution from Ankeney, because they were bound, as securities, by different instruments. But there is no foundation for such a suggestion. The doctrine of contribution is not founded in contract; but is an implied equity, resting upon the plainest principles of morals and natural justice. For, in the language of justice Story, “ as all are equally bound, and are equally relieved, it seems but just, that in such a case, all shall contribute in proportion, towards a benefit obtained by all, upon the maxim, ‘qui sentit convrnodum sentire debet el onus.’ ” In commenting upon this subject, the learned justice, in 1 Story’s Equity p. 549 sec. 495 states, that “originally, it seems to have been questioned, whether contribution between sureties, unless founded upon some positive contract between them, incurring such liability, was a matter capable of being enforced at law. But there is now no doubt, that it may be enforced at law, as well as in equity, although no such contract exists. And it matters not, in case of a debt, whether the sureties are jointly and severally bound, or only severally; or whether their suretyship arise under the same obligation or instrument,- or under divers obligations or instruments, if all the instruments' are for the same identical debt.” The same principles are laid' down with equal perspicuity and distinctness in the 1 Law. Lib, 160, where it is* stated, that “the right to- contribution exists between all sureties of the same degree, whether they are engaged jointly or severally, and if severally,-whether they are engaged all in one instrument or several instruments, and whether they have a knowledge of one another's’’ engagements or not;* — because, in all these different cases, a payment by-'one surety, is equally a benefit to all other sureties.”

It hence follows, that it would be against equity arid justice to" permit Angle to recover from Ankeney, more than a moiety of the amount paid by the former, in satisfaction of a debt, for the payment of which both were equally responsible. And it is- equally opposed to equity and conscience, that Washington county court should have unconditionally arrested the arm of the law, in the suit on the law side of the court,- by Angle against Ankeney; and by a perpetual injunction have prohibited the-former from recovering any thing'at law against the latter. It is one of the oldest and soundest maxims of chancery jurisdiction, “ that he who seeks equity, must do equity.” And it is a maxim equally well established,-that a court of chancery never will-,-, against equity and conscience, interpose, by way of injunction, to arrest the progess of proceedings- at law; unless required so to- do, upon principles of public policy. Such principles of policy have nothing to do with the case now before us. What then should Ankeney properly have shewn by the statements in his bill, to entitle himself to the relief which he sought? He should have stated, that he tendered to Angle the moiety, with the interest thereon, of the single bill, which he had given to Craig; or that he was ready and willing to bring the same into court to be paid to Angle, unless upon the condition of his willingness to make such payment, he had no standing in a court of equity; nor even a colorable right to the interposition of such a court, in his behalf, in the mode in which he has applied for it.

It appearing to this court, upon the facts as brought before it, upon the final hearing on the bill and answers, that the purposes of equity and justice would be subserved by tho granting of a perpetual injunction in this case, upon the defendant, Ankeny, paying to the appellant Angle, or bringing the same into Washington county court to be paid to him, one-half part of the principal and interest due on the single bill in question, this court will pass a decree reversing the decree of the court, below, (but without costs in either court to either of the parties,) unless the said Ankeny shall, on or before the first day of June next, make such payment into said court, or to the appellant Angle.

DECREE REVERSED WITHOUT COSTS.  