
    Elisha Litler v. Stephen Horsey.
    One of several sureties, against whom judgment has been obtained, can not sustain a separate action against principal, under section 5 of the act for the relief of sureties. But in such case, where there is a joint judgment against several sureties, all must join in the action.
    This was a writ of error to a judgment of the court of common pleas of Pickaway county, reserved in the Supreme Court of that county for decision here. The original action was a special assumpsit, and the facts, upon which the opinion of the court was founded, were as follows:
    On April 21, 1818, Litler, the defendant, and one Heath made a note for twenty-two hundred dollars, negotiable at the office of the Bank of the United States at Chillicothe. It was indorsed by the plaintiff, Horsey, John White, and James Moore, and discounted, and the proceeds received by the drawers. This discount was an accommodation for the drawers, and the note drawn and indorsed by the same parties, was renewed until October 27, 1818J when Asael Heath’s note, indorsed by the plaintiff, John White, James Moore, the previous indorsers, and Job Radcliffe, an additional indorser, was discounted, and the proceeds applied to take up the note of Litler and Heath. Litler’s name was thus withdrawn from the paper, and the note was renewed and reduced by the same parties until June 1, 1819, when Asael Heath’s note was discounted, indorsed by the plaintiff, and by James Moore, Job Radcliffe, and Jonathan Heath, instead of John White. The note thus indorsed was renewed once, and not being paid, suit was brought against the plaintiff and the other indorsers, and judgment rendered against them. Horsey had not paid the money; and it was agreed that there was no proof that Horsey indorsed the first note at the request of Litler, other than the presumption arising from the fact, that Litler *was one of the drawers of the notes; and there was no proof that Litler had any information or knowledge that Horsey had indorsed the note in question.
    These facts appeared upon the pleadings, and upon a.bill of exceptions, made part of the record. The jury found a verdict for the plaintiff, and judgment was given upon the verdict, to reverse which the writ of error was brought.
    Irwin, for plaintiff in error:
    Horsey, not having paid the money as surety, predicates his action upon the statute for the relief of sureties, which gives the surety an action against the principal, where judgment has been rendered against such surety for the debt.
    The action was not maintainable, because Litler was not a party to the note on which judgment was rendered; because, there being more than one surety, they ought all to have joined as plaintiffs'in the action; and because the note upon which judgment was rendered, was a transaction between parties with whom Litler never was associated in the negotiation.
    The first section of the act confines the relief to eases of sureties “by bond, bill, or note.” The fifth section, which gives the action to a surety before payment of the money, must be understood to relate to the class of cases included in the first, and to none other. Litler being no party to the note, no judgment upon it could be rendered against him ; he could not, therefore, be subjected to an action under the fifth section.
    If he were subject to such action, under this section, it is to a single action only , and not to as many actions as there may be sureties. This would be to multiply litigation, when the legislature have evinced their disapprobation, by requiring suits against drawers and indorsers to be joined.
    The note drawn by Heath and Litler was paid and satisfied. New transactions took place, to which Litler was no party, and it can not be possible that Jonathan Heath and Job Radcliffe, whose names were never on the note with Litler, can be his security in a “ bond, bill, or note.” Tet *they, with the plaintiff, are joint securities upon that note, and their responsibilities must be the isame.
    Ewing, for defendant in error:
    This court have decided, that indorsees of accommodation paper .•are joint sureties for the drawers. Douglas v. Waddle, 1 Ohio, 413.
    Sureties can not join in an action against their principal. They •must sever.
    The statute gives a new and summary remedy, but it does not ■change the law as to parties to the action, or make their remedy joint where before it was several.
    If sureties, whether indorsees or joint obligees, pay the debt of their principal, they can not sue him jointly, to recover back their money. The suits must be several. It may be considered a hardship to subject the principal to a suit by each of his sureties. This might be urged as a reason why the legislature should change the 'law, and provide for a joint action. But without such interference a joint suit can not be sustained.
    The original debt was contracted for the joint benefit of Litler and Heath; they were the original debtors, and the same debt subsisted through all the mutations of renewing notes and changing securities. Litler is, therefore, “ a principal debtor ” within the meaning of the act, and is liable.
   By the Court :

At the common law a surety has no action against his principal until such surety has paid the money; and the remedy extends no further than to recover back the amount paid, as in any other case of money paid for the defendant, at his request. This being the rule, the action of every surety must be for his own advances, and must be in its nature separate. For although two or more joined as sureties in the writing, that act gave them no right, even if it could be considered a joint act. Each surety could recover the amount he had paid, and no more, and the principal, though subjected to the expense of separate suits', could not be subjected to-a judgment for any greater sum than his own original debt.

*0ur statute gives to the surety a totally different remedy. It authorizes the surety to sue a severe process, and obtain a summary judgment against his principal, so soon as the creditor shall have obtained judgment against the surety. The judgment is to be rendered for the “proper amount,” which, of course, must be the amount of the judgment against the security. The foundation of this proceeding in favor of the surety is totally different in principle from the proceeding at common law. It is not the amount paid by the surety, but the whole amount of the judgment, for which the surety may proceed against the principal. Where there are, as in this case, four sureties, upon the doctrine contended for by the defendant in error, each is entitled to a separate judgment against the principal for the whole amount. And each, upon the hypothesis that he might be compelled to pay, would claim to proceed and collect the whole amount of his judgment. Thus a necessity might be created for more litigation to settle and adjust all the rights of the parties. The court conceive that this would not be a reasonable construction of the statute. The judgment which gives the right of the surety to sue, is an entire and single judgment against all; the right it confers upon them must also be entire. Such being the opinion of the court, it is unnecessary to inquire whether the plaintiff could, upon the facts stated, be considered a surety for the defendant. Were that fact fully admitted he could not, in this case, sustain his separate action. The judgment must be reversed.  