
    William M. Harris v. William Ferguson.
    A magistrate may entertain jurisdiction of a suit for contribution, by one surety to a sheriff's bond against his co-surety, if the sum demanded for contribution is within his jurisdiction.
    On an appeal from a magistrate, the Court of Common Pleas is not restricted to a simple affirmance or reversal of his judgment; but may remand the case for a new trial, with instructions.
    Where the sheriff has been required under the act of 1820, to procure additional security, and has at different times entered into new bonds, with new sureties, all of the sureties to all the bonds, the old and the new, are liable to contribute equally, in the ratio of the aggregate number of such of them as are solvent, for the defalcations of their common principal.
    The doctrine of contribution among sureties is not founded on contract, but on the general equity of equality of burthen and benefit: And therefore sureties for the same principal, and the same engagement, are liable to contribute, although bound by different instruments, executed at differ ent times.
    
      vide acts of 1820, pp. 42, 43-4.
    Tried before Mr. Justice Earle, at York, Spring Term, 1831.
    Appeal from the judgment of a magistrate. The plaintiff and defendant, with four others, were sureties to the official bond of James M. Harris, late sheriff of York, which was executed 10th September, 1824. The sheriff having been required, under the act of 1820, to give additional security, entered into a new bond, with four sureties, on the 9th December, 1826; and upon a similar requisition, executed another bond with one surety, on the l6tli April, 1828, making in all eleven sureties to bis different bonds. On the 1st September, 1825, the sheriff received $98.21, on an execution in his office, which he neglected to pay over, and which the present plaintiff, as his surety, paid to the plaintiff in the execution, on the 6th April, 1830; and then brought this suit against the defendant for contribution. The magistrate gave judgment for one eleventh part of the sum paid by plaintiff.
    It appeared, that on the first of March, 1830, judgment had been had on the sheriff’s bond, against himself and five of his sureties, two to the first, and three to the second bond. The defendant was not a party to that judgment; and it was rendered for a different defalcation: It was contended, however, that the defendant’s liability being founded on the bond, the Court would not allow it to be split, by entertaining equitable actions for contribution upon every defalcation; but would confine the plaintiff to his remedy on the bond: and as that was beyond the jurisdiction of a magistrate, his judgment in this case must be reversed. But the presiding Judge overruled the objection ; holding, that although the bond was the foundation of defendant’s liability, it was not the cause of action against him. The recovery was not upon the bond, but upon a payment of money, which the defendant was ex cequo et bono bound to refund ; and the amount being within a magistrate’s jurisdiction, he could lawfully entertain a suit for its recovery.
    The plaintiff also contended, that the Magistrate had erred in giving judgment for an eleventh instead of a sixth part of the amount paid by the plaintiff; there being but six sureties to the bond, which the plaintiff and defendant had joined in executing. In this opinion the presiding Judge concurred ; holding, that the liability of the sureties to each other arose from the privity of their contract, and was not extended or diminished, by distinct securities for the same engagement executed by other persons. His Honor, however, was not clear, that he possessed authority either to amend the. magistrate’s decree, or to send it back for a new trial; and doubted whether he was not restricted to a simple affirmance or reversal of the judgment.
    The judgment was affirmed : and both parties appealed; the defendant on the ground that the judgment ought to have been reversed; and the plaintiff, on the ground, that it ought to have been remanded.
    Williams, for the defendant.
    The defalcation did not occur, until after the new bonds were executed. Ferguson was tne of the original sureties, and was objected to on account of his supposed insolvency. The new security was substituted for him, and the taking that security discharged him. M'Dowell v. Caldwell, 2 M‘C. Ch. 58. Simkins v. Cobb, ante, p. 60. It would be idle for the Legislature to require new securities, if the Courts should say, they were not- liable.
    Hill, contra.
    
    The act of 1820 expressly provides,that “the original bond shall not be cancelled, or impaired,” by taking a new one.
   Johnson, J.

delivered the opinion of the Court.

We concur with the presiding Judge, that this cause of action was cognizable before a Magistrate, the sum demanded being within his jurisdiction. But we are also of opinion, that in cases where justice cannot be done on an appeal, by an affirmance, or reversal of the Magistrate’s judgment, the Court may, and ought to order the case back for a new trial with instructions. And by way of illustration, I would put the case where judgment was awarded upon inadmissible evidence ; or where proper evidence had been excluded. In those cases, justice could be done in no other way; and such has been the uniform practice of the Court according to my own experience. It is upon the same principle that this Court is authorized to reverse the decisions of the Circuit Court, and to send back cases for a new trial, with our corrections as to matters of law.

The remaining question, whether the defendant is bound to contribute, and in what ratio, to the plaintiff, for the money paid by him on account of their joint suretyship for James M. Harris, is the most important presented in this case. Regarding them merely as joint sureties to the same bond, there could be no doubt about the rule. All are bound to contribute equally, and the whole difficulty arises out of the circumstance that under the provisions of the act of 1820, additional bonds, with additional sureties, were given, conditioned for the same object, Harris’ discharge of the duties of the office of sheriff; and the doubt is, whether these parties, the sureties to the first bond, are amongst themselves bound to contribute in the ratio of the num0f SLli-eties to that bond, or in the ratio of all the sureties to all the bonds.

The received opinion now is, that the liability to contribute ... , . . „ . T amongst co-sureties, is the result of a general equity, founded on the equality of burthen and benefit, and not on contract; or as the Lord Chief Baron Eyre expresses it, in Dering v. Earl of Winchelsea. 1 Cox, 321, “ in cquali jure.” The law requires equality; one shall uot bear the burthen in ease of the rest, and the law is founded in great equity. Chancellor Kent has adopted the same principle in Campbell v. Mesier, 4 John. Ch. Rep. 338.

From the hypothesis alone, it would seem to follow, that where - several are joined for the same common end and purpose, the burthen ought to be borne equally, although they may have become bound at different times, and by different contracts ; and the case of Dering v. Earl of Winchelsea, above referred to, reported also in 2 Bos. & Pul. 270, and which bears a strong resemblance to the present case in many particulars, puts the matter beyond doubt. Thomas Dering was appointed collector of the customs, and to intitle him to assume the duties of his office, he was obliged to give bond to the crown, with three sureties for the faithful discharge of the duties of his office. The plaintiff, and defendant, and Sir John Rous, severally joined with the said Thomas Dering in three several bonds, each in the penalty of £4000, for his faithful discharge of the duties of the office; and upon a question as to the liability of the defendant to contribute to an amount paid by the plaintiff, on account of the defalcation of their principal, it was held clearly, that he was liable although he was bound by a different bond. “ What difference,” asks the Chief Baron, “ will it make if they are severally bound, and by different instruments, but for the same principal, and the same engagement? In all these cases the sureties have a common interest, and a common burthen ; they are joined by the common end and purpose of their several obligations, as much as if they were joined in the same instrument.” 1 Cox 322. And Maddock in his treatise on Chancery, refers to Cook’s case, 2 Freem. 97, where the principle was applied to the case of a supplemental surety. 1 Mad. 233. Upon the same principle it was held in Peter v. Rich, 1 Ch. Rep. 35, that two out of three sureties were compelled to contribute in moieties, the third having become insolvent.

What is this case ? The sureties to all the bonds executed by Harris for the faithful performance of the duties of the office, were bound for the same common end, to wit, to-protect the community against his defalcations; and according to the principle, they are bound to contribute in the ratio of their aggregate number. If any of them should prove insolvent, the contiibution must be in the ratio of the number of those that are solvent. In the absence of proof of the insolvency of any, the magistrate was correct in giving judgment only for one eleventh, there being eleven sureties to all the bonds. His judgment is therefore affirmed, and the motions of both parties are dismissed.  