
    *Gordon v. Jeffery.
    November, 1830.
    (Absent Coalter, J.)
    Forthcoming Bond — Execution by Surety Induced by Deception — Equitable Relief — Case at Bar. — A fi. fa. being sued out by J. against M. and being in the hands of the sheriff, M. the debtor, applies to G. to join him in a forthcoming bond thereon, and represents to him, in the sheriff’s presence, that the amount of the debt is about one seventh of the real amount, which representation the sheriff does not contradict; whereupon, G. consents to become the surety, and M. and G. sign and seal a forthcoming bond, blank as to the amount of the execution and as to other material particulars, and deliver it to the sheriff, who afterwards fills up the blanks; and execution is awarded upon this forthcoming bond: Held, G. is not entitled to relief in equitjr against the obligation of the bond, upon the ground of the deception which induced him to execute it, as the creditor to whom it was taken was no party to the fraud, and the sheriff, who was party to it, was not the creditor’s agent in taking the bond.
    Same* — Failure to Give Surety Notice of Motion on— Equitable Relief — Terms of Relief. — But the award of execution on the forthcoming bond, was founded on proof by the sheriff of notice given by him to G. when in fact no such notice had been given, and the sheriff had induced G. ’s attorney to believe that no notice would be given; whereby G. was deprived of the opportunity of defending himself at law, upon the plea of non est factum: Held, that, in giving notice on a forthcoming bond, the sheriff acts as agent of the creditor, who is not entitled to benefit by any fraud he commits in relation thereto; and that, in the present case, the surety was entitled to relief in equity, upon the ground of ■surprise, but only on terms, that he himself shall do equity; that is, that he shall pay the amount for which he really intended, to bind himself as .surety.
    In a suit of Gordon against Jeffery, in the superior court of chancery of Freder-icksburg, the case alleged in the bill, and, in the opinion of this court, proved by the evidence, was thus:
    Five writs of fieri facias were sued out of the court of Orange, against Robert Mallory, upon judgments of that court; one by Buck, amounting, principal, interest, costs and sheriff’s commissions to 250 dollars; one by Lightfoot, amounting to 238 dollars; one by Bradley, amounting to 98dollars; one by Burgess, amounting to 828 dollars; and the other by the appellee Jeffery, amounting to 651 dollars: in the aggregate 2065 dollars. These executions were all delivered to Holloway a deputy sheriff of Orange, and vjere ’‘'in his hands at the same time. The executions were not actually levied: but Mallory applied to Gordon, to join him as his surety in forthcoming bonds for the delivery, at the time and place of sale, of property specified by Mallory, or to be specified in the forthcoming bonds, as having been taken in execution under the five writs of fieri fa-cias ; and to induce Gordon to incur this responsibility, Mallory represented to him, in the presence of Holloway, the deputy sheriff, that the whole amount of the five executions was only two or three hundred dollars; and Holloway, though he must have known the truth, did not gainsay this erroneous representation. Misled by this information of the small amount of the debts, Gordon consented to become the surety; and Mallory and Gordon signed and sealed five blank forthcoming bonds; blank, probably, in all particulars; blank, certainly, as to the names of the creditors, the name of the deputy sheriff who had charge of the executions, and the amounts thereof respectively: and they delivered these forthcoming bonds, or rather forms of bonds, so signed and sealed by them, to Holloway. The blanks in the bonds were afterwards filled up, partly by Holloway, and partly by his clerk by his directions: Holloway himself inserted the description of the property in the conditions of the bonds, there stated to be the property of Mallory which he had taken in execution, though it appeared, that, in fact, Mallory had not at the time any such property: the other blanks were filled up by the clerk. Motions were made in the county court for award of executions on these forthcoming bonds, and due notice of the motions being proved by Holloway, executions were awarded. The motions were made at the short morning session of the monthly court in April, the day of the election, in the absence of Gordon’s counsel: and it appeared most probable, that no notice of the motions had been given to Gordon; but, on the contrary, Holloway had, at the preceding March term, informed Gordon’s counsel, that he had not given, or that he would not give, notice upon the forthcoming bonds, to the next court; that he supposed *the attorney for the creditors would not move against him, the sheriff, and he should give Mallory time to get in his crop of wheat. The county court, at the May term after the award of executions on the forthcoming bonds, upon the motion of Gordon, and upon proof of the material facts of the transaction above stated, being satisfied, that the forthcoming bond taken to Jeffery was fraudulently obtained from him, and having been in blank when signed and sealed by him, and that the award of execution thereupon had been obtained by surprise, and that the proceedings and return upon the fieri facias on which the bond was taken, were wholly irregular, quashed the forthcoming bond taken to Jeffery, and the writ of fieri facias upon which it had been taken. But to this order, the circuit court, at the instance of Jeffery, allowed a supersedeas, and eventually reversed the order.
    Gordon, then, exhibited this bill against Jeffery, setting forth all the facts of the case ; alleging that this forthcoming bond to Jeffery, as well as the other four forthcoming bonds, had been obtained from him by the misrepresentation, as to the amount of the debts, made by Mallory in the presence of the deputy sheriff, and not contradicted by him; that this bond (as well as the other four) having been blank in the most material particulars, when signed and sealed by him, and the blanks afterwards filled up by the deputy sheriff, was not his deed ; and that no notice having been given him of the motion for award of execution on the bond, but on the contrary his counsel having been informed by Holloway, that notice had not been or would not be given on the bond, he was prevented from making his defence at law, and the award of execution was obtained by surprise : and, therefore, praying an injunction to further proceedings on Jeffery’s execution on the forthcoming bond.
    The chancellor awarded the injunction, according to the prayer of the bill: but, upon the hearing, he dissolved the injunction and dismissed the bill with costs. Gordon appealed to this court.
    *Stanard, for the appellant,
    insisted that the five forthcoming bonds, and this taken to Jeffefy, among the rest, were obtained from Gordon by a misrepresentation as to the amount of the debts, which having been made in the sheriff’s presence and not corrected by him, he was a party to it, and so the bonds were fraudulently obtained from Gordon ; and that independently of the fraud, the facts alleged and proved would have fully sustained the plea of non est factum at law; and that Gordon having been prevented from making that defence upon the motion for award of execution upon the bonds; having been indeed lulled into security by the declaration of the sheriff that he had not given, or would not give, a notice upon the bonds, to the court, at which motions were afterwards made and execution awarded, the award of execution was obtained by gross fraud and by surprise: that, therefore, the injunction ought to be perpetuated as to the whole debt. He cited King and Porterfield v. Smith et al., ante, p. 157.
    
      
      Forthcoming Bonds. — See generally, monographic note on “Statutory Bonds” appended to Goolsby v. Strother, 21 Gratt. 107.
      The principal case was cited in Smith v. McLain, 11 W. Va. 672.
    
   BROOKE, P.,

delivered the opinion of the court. This case differs materially from those of King and Porterfield v. Smith. There, King executed the forthcoming bond, and delivered it to the sheriff, as an escrow, on the express condition, that another surety, the father of the debtor, should also execute it, in the confidence, probably, that if the father executed it, he would see,that the son discharged it. The chancellor thought, that it was doubtful, whether the bond was executed and delivered as an escrow, and directed an issue to try that question ; but, at the same time, dissolved the injunction, as to so much as the plaintiff would have been bound to pay, if the bond had been executed by the father as surety, according to the condition on which it was delivered, and the sureties made liable to pay the debt, the principal being insolvent. This court concurred with the chancellor, as to the propriety of the issue, but held, that the plaintiff was bound for the whole of the debt, or for no part of it; if the bond was his, for the whole; if not, for none; because in no case, had he agreed to make himself liable for any part, unless the bond was executed *according to the condition on which it was delivered. The case before us is whollj' different. Gordon intended to be bound for the debts due from Mallory, especially for that due Jeffery (as he admits) ; and to that end, signed the blank bonds, and delivered them to the sheriff, to be filled up according to the executions: his only ground of complaint in equity, is, that he was grossly deceived as to the amount of the executions, by the false representations of the debtor Mallory, made in the presence of the sheriff, who did not undeceive him. If that representation had been true, the circumstance, that he might have defended himself at law, on the plea of non est factum, but for the surprise .practised on him by the sheriff, would not have entitled him to relief in equity; which, though it will not charge a surety farther than he is chargeable at law, will not relieve him, or any other party, against a judgment, however obtained, when such relief would be against conscience. For, if the surety intended to be bound when he signed the blank bond, to the full amount of the debt, the judgment would only have the effect of enforcing his deliberate contract; and to discharge him from it, would be against conscience. If Gordon had intended, when he signed the blank bond, to avail himself of that defence at law, he would have been practising a fraud both on the creditor and the Sheriff. The circumstance, therefore,' that he had an essential defence at law, of which he was deprived by the fraud of the sheriff, is of no importance, except that it gives jurisdiction to the court of equity to relieve him against the judgment, if, upon the other circumstances of the the case, he is entitled to relief. Both parties are seeking to avoid a loss. Gordon, to relieve himself from the payment of the debt of another, for which he has received no consideration; Jeffery to recover a just debt by due course of law. If both parties are blameless, a court of equity will not interfere. On Gordon’s part, he in the first instance, was grossly negligent, in trusting the sheriff as he did, and enabling him to do the mischief, which must now fall on one of the parties. In conducting the executions, and taking the forthcoming bonds, the sheriff *was, in no sense, the agent of Jeffery, but an officer of the law, to whom he was under a legal necessity of, confiding that duty: therefore, he. is not at all affected by his fraud in that respect. And, if there was nothing more in the case, no relief could be given to Gordon; it being a principle frequently acted on, in courts of law, that where one of two innocent persons must suffer by the act of a third person, he who has trusted most must bear the loss. The sheriff was, however, the agent of Jeffery, in respect to the notice of the forthcoming bond. It was not his official duty to give the notice. The law gives the right to the creditor to whom the bond is made payable, to have an award of execution on his motion only. He is, therefore, responsible for the fraud of the sheriff, his agent in this respect; or, at least, cannot be entitled to benefit by it, though he was not privy to it, nor had the least participation in it. He stands, then, on different ground from that be would have occupied, if due notice had been given, and the award of execution had been made without opposition, through some accident not affecting him; such as the absence of counsel, or the like. Yet it does not seem equitable that this fraud of his agent, which does not touch his conscience, should have the effect to discharge Gordon from all responsibility; since he too has been in fault, and since he certainly intended to be bound by all the bonds that he signed, to the extent of 300 dollars. For, a court of equity will not relieve even against a judgment obtained by the fraud of the creditor, but on the terms, that the defendant at law shall pay what is justly due; upon the settled principle, that he who asks equity must do. equitjT. I think, therefore, that the injunction ought to have been dissolved, only for a sum equal to the proportion of 300 dollars, which would fall to Jeffery, in a rateable distribution thereof among all the creditor of Mallory, to whom Gordon intended, when he signed the blank bonds, to become bound to that extent. The decree, therefore, is reversed, the injunction reinstated, and the cause remanded, to be further proceeded in, according to the principles here declared.  