
    *King v. Smith and Others. Porterfield v. Same.
    March, 1830.
    (Absent Coalter, J.)
    Forthcoming Bond — Delivery by Surety to Sheriff as Escrow — Liability of Surety in Equity.— P. agrees to join H. W. as his surety in a forthcoming bond, and executes and delivers the bond, as an escrow, upon condition that K. shall also join in and execute the bond as co-surety; and K. agrees to join as surety in the bond, and executes and delivers the same, as an escrow, upon condition that O. W. also shall join in and execute the bond as co-surety; but O. W. never unites in the bond: Held, that upon this state of facts, neither P. nor K. are liable for any part of the debt in equity, any more than they would be liable for any part of it at law, where the facts would amount to proof of non est factum.
    King exhibited his bill in the superiour court of chancery of Winchester, setting forth, that in July 1823, John Seevers, the deputy marshal of that court, came to his house, with three several forthcoming bonds, taken upon three several executions, sued out by Donald & Ridgely, Smith, and Spalding & Macomb, respectively, against Harrison Waite, which bonds were then signed by Waite the principal, and by J. S. Porterfield as a surety; and Seevers importuned King, who was sick in bed at the time, to execute them also, as a surety; and King at length did agree to sign, and signed the bonds, and delivered them to-Seevers, but upon the express condition, that Obed Waite, the father of the debtor, should also sign them as a surety, and if he refused to do so, that the bonds should not be obligatory on King. That the reason of his insisting on this condition, was, that he knew if Obed Waite joined in the bonds, he would not permit his co-sureties to suffer any loss. That Obed Waite never-executed the bonds: yet they were returned by Seevers to the court. That the first had been discharged, and part of the second had been paid. That though King delivered the bonds as an escrow, to be binding on a condition which had never been performed, Smith and Spalding & Macomb had recently obtained award of execution on the two-bonds taken to them respectively; and, *as Harrison Waite the principal, was insolvent, King and Porter-field were thus liable at law for the whole amount. That the reason why this matter was not relied on as a defence against the motion for award of execution on the bonds, was, that King never had any notice of the motion. The bill, therefore, made Smith, Spalding & Macomb, the administrator of Seevers the deputy marshal (who was now-dead), Waite the principal, and Porterfield the co-surety, parties defendants; and prayed that Smith and Spalding & Macomb-should be injoined from further proceedings at law upon the forthcoming bonds. The injunction was awarded.
    The defendants Smith the creditor in one of the bonds, the administrator of Seevers the deputy marshal, and Waite the principal debtor, filed their answers. Neither of them directly denied the allegations of the bill, as to the condition on which King joined in the bonds. But they all averred their belief, that those allegations were untrue; and they stated several circumstances that seemed inconsistent and irreconcileable with King’s account of the transaction.
    A son of the plaintiff (who was in his fifteenth year at the date of the bonds) deposed, that he was present when his father signed them; and he testified directly and positively, to the truth of the material allegations of the bill. On the other hand, there were depositions of several witnesses, proving expressions and conduct of King, which evinced, that he regarded the bonds as his deeds after he had been apprised what parties had in fact executed them.
    Pending this suit, Porterfield, the other surety, also exhibited a bill in the same court; in which, referring to King’s bill,, he stated, that he had signed the bonds, upon the express condition that King should join in them as his co-suret3r, otherwise they should not be obligatory on him; and that, finding from King’s bill, that he had never so executed them as to make them his deeds, if they were not obligatory on King, then neither were they obligatory on Porterfield. Therefore, the bill prayed an injunction to stay further proceedings *at law on the bonds as against Porter-field also. And this injunction was awarded.
    To this bill the creditor Smith and Waite the principal, put in their answers. Smith’s answer did not respond to the material allegation of the bill. Waite, in his answer, expressly stated that it was exactly true.
    Oti motions made to dissolve both injunctions, chancellor Tucker was of opinion, that whatever might be the fact as to the delivery of the bonds as escrows by King and Porterfield, they' both executed them contemplating a liability* by reason thereof; King contemplating a liability to the extent of one third at least, and Porterfield, of one half; for which proportions they ought, in equity, to be held liable in any event. Therefore, he dissolved the injunction that had been awarded to King, as to one third of the amount due upon the bonds, and that awarded to Porterfield, as to another third thereof. And he ordered issues to be made up and tried at the bar of the circuit court of Frederick, to ascertain, 1. Whether the forthcoming bonds were executed and delivered by Porterfield, upon the express condition that they should be also executed by King? and 2. Whether they were executed and delivered by King, with a like condition, that they should also be executed by Obed Waite?
    King and Porterfield appealed to this court.
    The causes were argued here by Reigh for the appellants, and Johnson for the appel-lees.
    There was some discussion of the questions of fact, upon the evidence: however, the only point was, Whether, supposing the allegations of the bill true, King, and by consequence Porterfield, ought, in equity, to be held partially bound by the bonds, upon the principle declared by the chancellor, or ought to be intirely discharged from the obligation thereof.
    
      
      Bonds — Escrow.—The principal case was cited in Baylor v. Dejarnette, 13 Gratt. 172: Nash v. Fugate, 24 Gratt. 213; American, etc., Co. v. Burlack, 35 W. Va. 653, 14 S. E. Rep. 321; and distinguished in Gordon v. Jeffery, 2 Leigh 413.
      See generally, monographic note on “Bonds” appended to Ward v. Churn, 18 Gratt. 801.
    
   BROOKE, P.

The chancellor considered, that King executed the bonds in question, contemplating a liability to pay *one third of their amount at least; and Porterfield executed them contemplating a liability to pay one half their amount at least; therefore, however the facts might be, whether the bonds were delivered as escrows or not, they were liable in a court of equity, to the extent so contemplated by them, when they signed the bonds: in which I think he was intirely mistaken.

The appellants are bound, jointíy or separately, for the whole amounts of the debts injoined, or they are not bound to any amount. A surety is not bound in equity, unless he is bound at law. There must be two parties to a contract: unless the understanding of the appellants as to the extent of the demand against them, according to the chancellor’s view of their undertaking, was the understanding of the other par4y also, they are not bound by it, in law or equity. Had the allegations in the bill been proved in trials at law on special pleas of non est factum, the judgments must have been for the appellants, as to the whole amount of the bonds in question; and equity must follow the law.

The rest of the decree is also imperfect. The issue directed by the chancellor, is not as broad as it ought to ha,ve been: it ought to have been, to inquire whether the bonds in question were the deeds of the appellants, or not; as would have been the inquiry at law, on special pleas of non est factum. That I think the proper inquiry to be made, as I do not think the circumstances proved in evidence, though very strong, sufficient to justify a court of equity in decreeing against the positive testimony of one witness in support of the allegations of the bill, who is unimpeached.

The decrees are, therefore, reversed; the injunctions reinstated as to the whole amounts of the claims on the bonds; and the. causes remanded, for further proceedings to be had in both cases according to the principles here declared.  