
    White vs. Brown.
    A court of law can hear testimony to establish the relation of principal and surety in a sealed instrument, when a party claims his discharge under the act of 1825 as a surety on the ground that the judgment obtained against him as a surety was stayed without his joining in with the principal in procuring the stay.
    White recovered four judgments before a Justice of the Peace of Giles county, against W. R. Brown and I. E. Brown. These judgments were obtained on obligations made to White by the Browns. Both appeared as principals on the face of the instruments. W. R. Brown procured Harris to stay execution: Ira did not join in this application to Harris. It does not appear that Harris was aware of the fact that I. E. Brown was only a surety. The stay expired, and White procured the issuance of executions on the judgments. W. Brown had by this time become insolvent. Ira E. Brown applied for and obtained writs of certiorari and swpercedeas, returnable to the Circuit Court of Giles county, on the ground that he being a surety and the judgments having been stayed without his having joined the principal in procuring the stay, he was thereby exonerated and discharged.
    The cause came on for trial at the August term, 1843; Dilla-hunty, Judge, presiding; and was submitted to a jury. The defendant Brown offered evidence to show that he was a surety in the obligations, and not a principal. This was rejected. The jury rendered a verdict in favor of the plaintiff White. A motion for a new trial was made, and overruled, and judgment rendered, from which defendant appealed.
    
      N. S. Brown, for plaintiff in error.
    The principal question in this case is, as to the right of the defendant to obtain the redress sought by him, in a court of lawn
    In other words, had the Circuit Court the power under the acts of 1825, ch. 82, sec. 1, and of 1842, ch. 136, sec. 1, to grant the relief therein provided for sureties, where the note or bill single is under seal, and the fact of suretyship does not appear on the face of the paper.
    It is insisted for the defendant, that the legislature intended by these statutes, to furnish a cheap and easy mode of redress for sureties, in all cases coming within their purview; and that such redress could be had in a court of law, whether the sure-tyship appeared on the face of the note or not. The taking of the stay without the consent of the surety, was like a new contract with the principal; and would the right of the surety in such case to avail himself of it in a court of law, be questioned? Why not allow him to show that he is surety, as well as any other fact, in discharge of his liability?
    These acts of assembly form but a part of a general system, adopted from time to time, for the benefit of sureties, and should all be construed in pari materia: and by the act of 1809, ch. 69, sec. 2, the fact of suretyship, as therein provided, may by ascertained by a jury, where it does not appear on the face of the note, &c. Now, will not subsequent acts upon the same subject be held to embrace the same provision, where they have nothing inconsistent with it? See Cooke’s Rep. 258; 2 Tenn. 173, 373, 392 and 357; Cooke’s Rep. 330. See also Bac. Abr. 4th vol. title Statute, letter I, and also Kent’s Com. vol. 1, pages 440 to 469, inclusive.
    The language of the acts of 1825 and 1842 are general and comprehensive, and provide that when any person or persons shall be surety for any debtor or debtors, &c. Now, these acts have reference to liabilities of small denomination, such as .are incurred on debts within the jurisdiction of Justices of the Peace, and a large portion of them under the sum of fifty dollars, and of course not within the jurisdiction of a Court of Chancery. On all cases, therefore, of this last class, if the opinion of the court below be the law, no relief can be had. The legislature surely, in passing these statutes mainly for the benefit of sureties upon small debts, could not have overlooked this obvious difficulty, and therefore intended that relief in all cases should be had in a court of law; otherwise the statutes themselves will, in many instances, be rendered wholly nugatory. This court will give effect to the acts of the legislature, if by any possible intendment it can be done. It is the first principle in the construction of statutes, that an adherence to the letter must be abandoned, if by such adherence the leading or primary objects, of the legislature are to be defeated. 2 Ten. R. 857; Bac. Abr. 4th vol. statute, letter (I); where it is laid down, “that such construction ought to be put upon a statute as may best answer the intention which the makers had in view.” “The intention of the makers of a statute is sometimes to be collected from the cause or necessity of making it.” And in 1st vol. Kent’s Com. page 463, it is laid down, “that whenever a power is given by a statute, every thing necessary to the making of it effectual, or requisite to attain the end, is implied.”
    “When an action founded .upon one statute is given by a subsequent statute in a new case, every thing annexed to the statute by the first action is likewise given.”
    “A statute lately made may be holden to be within the equity of a statute made long since; and if a thing contained in a subsequent be within the reason of a former statute, it shall be taken to be within the meaning of that statute.” See Bac. Abr. (Statute.)
    For all these reasons, it is insisted that the Circuit Court erred in excluding evidence of suretyship on the part of the defendant, and that the relief sought by the defendant is properly attainable in a court of law.
    
      Wright, for the defendant in error.
    Ira E. Brown having executed sealed instruments apparently as principal, can he be heard in a court of law to prove otherwise. Is he not estopped in a case of this sort to do this? I contend that he is, and that the ruling of the Circuit Judge was correct. Theobald on Principal and Surety, top page 69, 77; Deberry vs. Adams, 9 Yer. Rep 42.
    In Rees vs. Benington, 2 Vesey Junior, 531, it is said by the Lord Chancellor, “the form of the security forces these cases into equity.” Maxwell vs. Connor, 1 Hill’s Chancery Reports, 14,16,17 et sequitur. It is clear, then, from these authorities, that though the defence of the surety was a legal one, yet at common law, where all the parties to a sealed instrument appeared as principals, the surety was estopped to show the fact of suretyship. The act of 1825, ch. 82, Ñich. & Car. Rev. p. 655, does not alter this principle, or interfere with this rule. It merely provides: “When any person or persons may be surety for any debtor or debtors, and said debtor or debtors and sureties may be sued and judgments rendered against them, if any person or persons shall stay the same, &c. such person or persons, so replevying, shall be liable, in default of the principal debtor, to pay the debt and costs of said judgment; and the first surety shall be exonerated therefrom, unless the principal debtor and surety in the replevy shall both become insolvent,” &c. Now, how is the fact of suretyship to be ascertained? The act does not say it shall or may be in a court of law; nor does it say in what manner it is to be arrived at. Does it not follow, therefore, that the fact of suretyship is just where it always was, and to be ascertained in the same way? The act of 1820, (1 Haywood & Cobb’s Rev. p. 208,) is in substance the same with the act of 1825; but the construction given this law in Elders vs. Johnston, (Peck’s Rep. 204,) in 1823, induced the legislature to pass the act of 1825. Previous to these statutes, the surety, in a case like this, had no relief. Their only effect was to announce a new principle, or rather a new case, in which the surety was to be exonerated. It was a mere addition by statute of one more case or ground to the many others before established, in which the surety was to be discharged. Suppose a statute were to announce, that mere delay to sue on the part of the creditor should discharge the surety, would this alter or change the ancient or common law mode of ascertaining the fact of suretyship1? Or, suppose the courts, by a system of judicial legislation, were, after a while, to arrive at the conclusion, that in such a case the security ought to be relieved, would not that relief have to come in the same manner as theretofore? It may be asked what is to be done with the case of a surety to a contract under fifty dollars, who cannot go into equity? It might be sufficient to delay an answer, until the case actually occurs. And we might say, if the legislature fail to provide a remedy, it is no reason why the courts should do what it has omitted. For the County Court once had chancery jurisdiction in cases under fifty dollars; (act of 1815, 2 Scott’s Rev. 207 and 208,)’ and this was taken away by the act of 1817, (2 Scott, 365,) and vested in no other tribunal.
    But we answer, first: there are now almost an indefinite number of cases, where relief ought, upon principle, to be had, yet cannot, because the demand is under fifty dollars, and the surety here will be no worse off. Secondly: this will only be the case where the suretyship rises from a sealed instrument and the fact does not appear upon the paper. For in all notes, bills and simple contracts, this fact can be proved and the defence therefore may be at common law; and in a bond too, if the surety will take the pains to make the suretyship apparent upon the paper.
    2. I contend, that Harris does not become liable before Ira E. Brown, unless he knew, at the time he stayed these debts, that the latter was only surety of William R. Brown; and that it devolves upon Ira E. Brown to show this by satisfactory proof. A principle of this sort has been held to apply in relation to contracts of delay, &c. between the creditor and principal debt- or, without the assent of the surety, where the fact of surety-ship was unknown to the creditor; and in such a case the surety is not released. And no reason is seen why the same principle does not apply here. Neimcewiez vs. Ghan, 3 Paige, 614, 651. It is very apparent Harris became stayor upon the faith and credit of both Ira E. and W. R. Brown, and especially that of the former. He did not bind himself until he examined the bonds and saw that both were principals in their face.
   Reese, J.

delivered the opinion of the court.

White obtained several judgments against William R. Brown and Ira E. Brown, before a Justice of the Peace, upon claims evidenced by bills single. One Robert S. Harris, at the instance and request of W. R. Brown, but not at the instance or request of Ira E. Brown, became bound in all the judgments,, asstayor, or surety for the stay of execution. Ira E. Brown was in fact surety only in all the bills single upon which the judgments were rendered; but this did not appear upon the face of the instruments sued on, and the stay surety did not know whether he was principal or surety merely. The act of 1820, ch. 24, sec. 1, Hayw. & Cobbs, 208, provides, that where “one shall stay a judgment rendered against principal and'sureties, without the request or consent of the sureties,” such stayor shall be liable before such sureties. Upon this section, the Supreme Court held, in a case reported in Peck’s Rep. that “without consent” implied dissent, in order to postpone his liability to that of the second surety. Whereupon, the legislature, in 1825, ch. 82, sec. 1, to clear all doubts as to their meaning in 1820, provided that the liability of the first sureties shall in all cases be postponed to that of the surety stay, unless such first surety should have specially joined with such debtor in procuring such stay or replevy. The object of these statutes is very apparent: it was to settle a question of security upon just principles between persons standing in the same general relation to the debtor, and to prevent the practical infliction of great wrong upon sureties, by the operation of the law itself granting stay of execution.

A debtor in failing circumstances and his solvent sureties are sued. The replevin surety risks nothing, if his liability is postponed to that of the judgment sureties, and after the stay is out, they are compelled unfairly to pay • the judgment, because in the mean time the principal has failed altogether. The statute intended to prevent this; but by what remedy? The principle being declared, and the parties generally knowing their own relations to each other, as also the judicial and ministerial officers, practical difficulty would not often arise. But if it should, a supersedeas, it is admitted by the counsel of White, or Harris, in a court of law, will be the proper remedy, where the relation of surety appears upon the face of the instrument. But where it does not so appear, they allege that this is no remedy at law; if not, there would be none in equity, in a large majority of cases, as jurisdiction stood in 1820; the minimum limit of chancery jurisdiction being fifty dollars, and that being the maximum limit as to most cases before a Justice..

It is most obvious, that such was not the legislative will. The court of law, by the intervention of a jury, could adequately supply the remedy. It was not an enquiry to impeach the consideration' of the contract,' which would be necessary, but ■to ascertain the relation of principal and surety. That power had been given to the legislature, to be exercised in the most summary manner, in 1809, and also in the year before. It is a mere matter of fact; that ascertained, the statutes determine the right; and that fact a court and jury can ascertain as well as a court of chancery. The stayor, besides, cannot be injured; he knows who requests him to stay; such are liable to him: if any request him not,. they are liable to him, provided they are principal debtors; but if sureties, they are not liable; that risk he takes upon himself, and that risk it is proper he should take upon himself.

The Circuit Court, therefore, was in error, in rejecting the evidence to prove to relation of surety on the part of Ira E. Brown.

Let the judgment be reversed.  