
    *Loop v. Summers.
    October, 1825.
    Evidence — Decree on Commissioner’s Report — Conclusiveness of. — The report of commissioners, and a decree thereupon, is not conclusive evidence against one who was not a narty to the .suit.
    Principal and Surety — Removal of Surety from Country —Proceeding against as Absent Defendant. — Where the surety to a bond has removed from the country leaving- the principal within it, the oblig-ee may proceed against the snrety, as an absent defendant, and attach any effects or debts he may have in the state-
    Samne — Discharging Surety — Parting- with Security — But if the obligee has parted with any security he may have in his hands, hy which the debt, or a part of it, might have been paid, the surety will be discharged pro tanto.
    Same — Same—Same.—In such case, the principal should be brought before the Court, before a decree can be obtained against the surety.
    This was an appeal from the Staunton Chancery Court.
    Philip Loop, and his son Christian, purchased of Samuel Summers, a tract of land, supposed to contain 50 acres, but which was afterwards ascertained to contain 63 cares, at $8 per acre. It was agreed between them, that the Loops should pay 711. 10, immediately, and the balance in annual in-stalments of $40. This tract had been devised by John Summers to-the said Samuel, and was charged with the payment of certain legacies, to the other children of the said John. Upon hearing of this incum-brance, Christian Loop withdrew from the contract, leaving his father, Philip Loop, the sole purchaser. Upon this, Philip Lo'op procured from Samuel Summers, a bond, with Philip Summers as his surety, to indemnify the said Loop, against the claims of the legatees. Loop afterwards paid to Samuel Summers, all the purchase money except $34.
    Suit was brought by the legatees, to charge the said land, in part, with the payment of the legacies. The bill was filed on the 15th of November, 1809; and the receipt for the purchase money as aforesaid, was given by Samuel Summers, on the 7th of February, 1810. An order was made, directing the land of the said Samuel Summers, among other lands, to be sold, unless a- certain sum of money was paid by a particular day. The money directed to be paid by the said Samuel, in the decree, not having been *paid by the time appointed, Philip Loop, (as he alledges) by his agent, Whirley, paid $190; that being sufficient to discharge Samuel Summers’ share from the legacies charged upon it. The commissioners, in their certificate, speak of this payment as having been made by Whirley, for himself and Philip Loop. In this suit, Philip Summers, (the surety to the bond of indemnity above mentioned,) was a plaintiff, as one of the legatees of John Summers.
    Philip Loop, filed his bill, setting forth the foregoing circumstances; charging that Samuel Summers was insolvent, and that Philip Summers had removed from the State, leaving sundry persons indebted to him; and also, that Philip Summers was entitled to a portion of the money, which had been raised as aforesaid, to satisfy the legatees, of whom he was one. The bill prayed, that if it should appear that Samuel Summers was insolvent, the Court would decree that Philip Summers .should make payment and compensation for the money paid to the commissioners; and, in the mean time, restrain the debtors of Philip Summers, (who were also made defendants,) from paying, secreting, &c. any debts or effects due to, or belonging to, the said Philip Summers, until the further order of the Court; and that the clerk of the Court might be directed to retain in his hands, the money decreed to' Philip Summers, under the decree of Summers v. Summers, above referred to, &c.
    The restraining order was made, until the further order of the Court.
    The Court, afterwards, made an order, that, it appearing that there is not a sufficiency of money belonging to the defendant, Philip Summers, deposited with the clerk of the Court, under the decree of Summers v. _ Summers, to discharge the plaintiffs claim, but that there is a sufficiency by adding to that sum, a portion of that attached in the hands of the defendant Eckerly, (one of the garnishees who had answered, confessing that he owed money to the defendant, *Philip Summers,) that the clerk of the Court and the defendant Eckerly, should forth-with_pay to the plaintiff, $166, with interest, &c. in certain proportions, upon condition of the plaintiff entering into bond, with security, or some person for him, to perform the future order of the Court, &c.
    Philip Summers answered, alledging, that the plaintiff had 'paid to the said Samuel, the whole of the money, except $34, (as appeared by his own shewing,) before one cent of the deferred instalments had become due, and when he knew of the pendency of the suit in behalf of the legatees of John Summers; and he conceived that it was not equitable for the plaintiff to pay money to S. Summers, after notice of the suit by the legatees, and then to call upon the respondent to compensate a loss, which he had voluntarily incurred: that the commissioners, in their report, say that the money was produced and paid by S. Summers; and it was not competent to them, to impeach their official act, by the certificate after-wards given, in which they say that the money was paid by Whirley, as well for himself as Loop, &c.
    Depositions were taken to prove the insolvency of S. Summers.
    The Chancellor dismissed the plaintiff’s bill, as to Philip Summers, on the ground that Samuel Summers had discharged the obligation in which Philip was surety; and that the money paid to P. Loop, should be re-paid by him to P. Summers. Loop appealed to this Court.
    Stanard, for the appellee, contended:
    1. That the Court had no jurisdiction. The pretext on which the plaintiff comes into a Court of Equity, is the total insolvency of Samuel Summers, and the consequent inefficacy of a suit against, him. The evidence shews that he was not insolvent. The case of Williams v. Donaghe, 1 Rand. 300, is not applicable, as that was the case of ^partners, where both were equally liable; this is the case of a surety, who is only liable in a secondary degree.
    3. On the merits, the decree restoring to P. Summers, the money that had been paid over, by decree of Court, to Loop, was correct: 1. Because the bond would no.t be forfeited until a defect of title should be judicially established by a suit against Loop. 3. Because, if the suit against S. Summers, was such judicial proceeding, Loop had, at the commencement of that suit, and when the bond was given, full indemnity in his hands; and his parting.with that indemnity, without the consent of P. Summers, deprives him oí his right to have recourse against P. Summers. 3. Because S. Summers held other lands than those sold to Loop, charged with the legacies, and Loop ought to have cast the charge on such other lands. 4. Because the money was paid by S. Summers, to the legatees; which fact is conclusively established by the report of the commissioners, in the suit brought by the legatees. The fact that the money, so paid by S. Summers, came from the hands oí Loop, does not change the case. It made S. Summers responsible to him for the money advanced, but did not charge P. Summers on the bond.
    Leigh, for the appellant,
    said in reply, that the Court had jurisdiction, as was proved by the cases of Ward v. Johnson, 1 Muni. 45, and Williams v. Donaghe, 1 Rand. 300. The distinction between primary and secondary liability, is of no importance, since in both cases, the creditor trusts to the responsibility oí both the obligors; and if he is in danger of losing the security of any one, by absence or otherwise, a Court of Equity ought to guard against such loss, by exerting its usual powers.
    The decree in favor of the legatees, established their claim against S. Summers, and gave Loop a legal right to sue on the bond of indemnity; and the payment of money by Loop, to redeem the land, creates a fair charge against Samuel and Philip Summers. That this money was paid *by Loop, and not by Summers, appears by the certificate of the commissioners; which explains the report of the commissioners, as to the money having been paid by S. Summers. There can be no doubt of the propriety of admitting such explanation, because Loop was no party to the suit in which the report was made. It therefore cannot be conclusive upon him.
    October 28.
   JUDGE COALTER,

delivered the opinion of the Court.

The Court is of opinion, that the report of the commissioners in the Chancery Court, referred to in the proceedings, and the decree thereupon, did not preclude the appellant, who was no party to that suit, from proving that he, and not Samuel Summers, paid the money to the commissioners; and consequently, that report and decree were no ground, in this case, for refusing the relief sought by the appellant.

The Court is also of opinion, that the Court had jurisdiction of the cause, so as to give that relief, and ought to have given it, except so far as the appellant, without the assent of the appellee, parted with the security which was in his hands, by paying the purchase money to Samuel Summers.

The Court is further of opinion, that the testimony on this subject, connected with the admission ill the answer, that a portion of the deferred instalments were to be paid, is too strong to justify a decree against the appellant on that ground of defence; yet it is not considered so strong as to warrant a decree, without further enquiry, against the appellee. Nor is there sufficient evidence of the sum of money actually paid by the appellant; the receipt given by the commissioners, at the time of the transaction, importing that the payment was made by Whirley, for himself *and the appellant; and being also expressed in such terms, as may be construed to mean, that it was so paid by Whirley, on their joint account, he also having purchased part of the land, subject to the claim of the legatees; in which case, the appellee would not be chargeable with the whole; this forms also a matter of further enquiry.

The decree is therefore reversed, with costs, and the cause remanded for the necessary enquiries to be made, as to the matters aforesaid, and otherwise proceeded in, by bringing Samuel Summers, (who is jointly bound with the appellee, and who is entitled to his aid, as well in the defence, as in bearing the burthen of the decree,) before the Court, so as to fix his liability also to the appellee, who may eventually be entitled to a decree against him, preparatory to a final decree. 
      
      The President, absent.
     