
    Richmond.
    Wayland v. Tucker & als.
    
    1848. January Term.
    
    1. The right of one surety to call upon his cosurety for contribution, arises from a principle of equity growing out of the relation which the parties have assumed towards each other: the equity springs up at the time of entering into that relation, and is fully consummated when the surety is compelled to pay the debt.
    2. The principal and two of three sureties in a bond became insolvent; and the other surety paid the debt. Previous to this payment the solvent surety had executed his bond for less than half the first bond, to one of his cosureties, who had conveyed it in trust for his creditors. After the payment of the first mentioned debt by the solvent surety, judgment was recovered against him on his own bond; and he then enjoined the judgment, claiming to offset it by his cosureties’ portion of the debt he had paid. Held :
    1. That he is entitled in preference to the assignee of his bond.
    2. He is entitled to relief in equity, notwithstanding the judgment at law.
    3. The jurisdiction now assumed by Courts of Law to enforce contribution in some cases, does not affect the jurisdiction originally belonging to a Court of Equity.
    
      In December 1842, Simeon B. Wayland, with John T. Tucker and William P. Ford, became the sureties of James Ford to Thomas & Carpenter in a bond ^ upwards of 600 dollars. In June 1843, Wayland beiri§ indebted to Tucker, executed to him his bond for about 200 dollars. Afterwards, and during the same year, the principal and cosureties of Wayland became insolvent; and Tucker conveyed to a trustee all his property, debts, &c., to pay certain creditors. In 1844, Wayland was compelled to pay the debt due to Thomas & Carpenter; and in 1845, Tucker for the benefit of his trustee recovered judgment against Wayland for the amount of his bond to Tucker. Wayland then enjoined the judgment in the Circuit Court of Culpeper, and claimed to set off against it the moiety of the bond for which himself and Tucker were bound as joint sureties to Thomas & Carpenter; and which he had been compelled to pay. Tucker and the trustee answered the bill, and contested the plaintiff’s right to set off the claim; and the trustee also objected to the jurisdiction of the Court; and upon their motion the Court dissolved the injunction. From this decree Wayland applied to this Court for an appeal, which was allowed.
    
      Morson, for the appellant.
    
      Patton, for the appellees.
   Allen, J.

delivered the opinion of the Court.

The Court is of opinion, that the right of one security to call upon his cosecurity for contribution, like the right of all the securities to call upon the principal for indemnity, arises from a principle of equity, growing out of the relation which the parties have assumed towards each other ; that the equity springs up at the time of entering into that relation, and is fully consummated when the security is compelled to pay the debt.

The Court is further of opinion, that in the events which have happened, the appellant having paid the whole debt for which he and others were bound as securities, and the principal and cosecurities having become insolvent, the equity of the appellant to offset the liability of Tucker as cosecurity to contribute for his relief, against the liability of the appellant on his bond to Tucker, is superior to the equity of Tucker’s assignee; he having taken the bond subject to all the equity of the obligor against the obligee.

The Court is further of opinion, that the failure of the appellant to rely on such offset at law, does not preclude him from applying to chancery for relief. The right to enforce contribution originally belonged to a Court of Equity, and the jurisdiction now assumed by Courts of Law to enforce contribution in some cases, does not affect the jurisdiction originally belonging to a Court of Equity. And in the present case, no adequate relief could have been afforded at law ; as the security can only recover at law the aliquot portions of each security. But in the present case, as there were three securities, and the cosecurity William P. Ford was insolvent, a resort to a Court of Equity was necessary to apportion his share among the two remaining sureties. 1 Story’s Equity 474, § 496, and the cases there cited.

The Court is further of opinion, that even if the party could have relied on the offset at law, the failure to do so would not have precluded a recovery of the claim in a distinct action; and if the same had been or could be recovered in a distinct action, the insolvency of said Tucker would have been good ground for equitable relief by way of injunction.

The Court is therefore of opinion, that the order of the Circuit Court dissolving the injunction was erroneous ; it is therefore reversed with costs, and the injunction is reinstated and the cause remanded to be matured for a hearing, and for a final decree.  