
    E. H. Chaffin, Ex'r, vs. C. M. Campbell.
    1. Security. Rights of stayor as against. Voluntary payment. Act of 1843, ch. 32. Where, upon a judgment against principal and surety, which does not recite the relation existing between the defendants, one became stayor at the request of the principal, without the knowledge or consent of such surety, and afterwards paid the debt, he cannot, either at common law or under our statutes, recover of such surety in the absence of a subsequent promise; and the act of 1843, ch. 32, does not preclude said surety from showing, in such action against him, his true relation as surety.
    2. Same. Contribution. One who becomes surety in the course of legal proceedings against the principal, has no right of contribution against the original security for the debt; but, on the contrary, the latter is entitled to be subrogated to the creditors’ right against him as in the case of bail.
    3. Cases Cited. Beeler vs. Sail, 11 Humph., 445; Winchester vs. Bear-din, 10 Humph., 247 ; Grissom vs. Moore, 1 Sneed, 364, approved.
    FROM MAURY.
    This is an action of debt, from the Circuit Court of Maury. The following are the facts agreed upon before the Circuit Court, and produced in the record here: that on the 29th of May, 1852, a note for three hundred dollars was executed by J. K. P. Campbell as principal, and R. C. Whiteside and W. W. Campbell as his securities ; that they were sued upon said note on the 7th of November, 1853, and judgment rendered against them by a justice of the peace of Maury county, without showing who was the principal or who were the securities; that the plaintiff in this suit, C. M. Campbell, became the stayor of said judgment, at the special request of said J. K. P. Campbell, the principal in said note; and that said Campbell, the stayor, afterwards paid the same; that R. C. Whiteside died more than six months before the suit was instituted before the justice; and that Edward H. Chaffin was duly qualified as his executor. This suit was brought by the stayor Campbell against Chaffin, as executor of Whiteside, to recover the amount of the note so paid. At the August Term, 1856, before Judge MARTIN, there was 'a verdict for the plaintiff Campbell for the amount of the note, and judgment thereon, from which Chaffin appealed in error.
    M. S. EeieRSON, for the plaintiff in error.
    1. It is a principle of equity that where one is bound as an original surety for another, and the creditor brings suit against the principal, who, in the course of legal pro- » ceedings, gives a bail-bond, prison-bounds bond, appeal, or injunction-bond, with a new surety, this latter surety, upon payment of the debt, has no recourse against the original surety; but if the original surety pays the demand, he has recourse over against the new surety; because it was by his intervention that the creditor and original surety were deprived of tbe power of obtaining satisfaction from tbe principal. 1 Leading Cases in Equity, 92 j, § 2.
    2. Tbis principle, and tbe reasoning of these cases, if strictly enforced, would render a stayor liable before tbe original surety without legislative aid. But it is unnecessary to discuss tbis question, as tbe acts of 1825 and 1842 declare that tbe stayor shall be liable before tbe original security. These acts interpose tbe stayor before tbe original surety; and as to him, tbe stayor becomes principal; and if tbe original surety is compelled to pay tbe judgment, be may maintain an action against tbe stayor. Winchester vs. Beardin, 10 Iiumpb., 247.
    3. To render these statutes applicable as between tbe original surety and tbe stayor, tbe Circuit Judge held that tbe suretyship of tbe original surety must appear on tbe face of tbe judgment. If tbis fact did not so appear, they were all principals who were mentioned in tbe judgment, so far as the stayor is concerned. In tbis tbe Court erred, because tbis Court, in tbe case before referred to, where tbe judgment was in these words, “Judgment against tbe defendants for one hundred and nine dollars and thirty-five cents,” held that tbe original surety who bad paid tbis judgment could maintain an action against tbe stayor for tbe amount so paid, although tbe fact of bis being surety did not appear on tbe face of tbe judgment. 10 Humph., B.. 251.
    4. Tbe act of 1843 does not abridge any of tbe rights of tbe original surety, but was intended to extend and enlarge these rights, for it declares that it “ shall be tbe duty” of all officers to exhaust tbe property of tbe principal before they shall sell the property of tbe surety or endorser. The design and intention of tbis act was to impose a new duty upon officers, for the benefit of the original surety or endorser — a duty which the original surety or endorser could not before the passage of this act have required the officer to perform.
    5. The second section of said act only exonerates the officer from the performance of the new duty imposed by the first section, if the judgment does not show upon its face who are the original sureties or endorsers. In that event, the act would he merely inoperative in favor of the surety or endorser, because the condition upon which it was to become operative and effective has not been complied with; consequently, the surety or endorser will stand precisely in the same position as though the act of 1848 had never been passed, and his rights will have to be determined by the acts of 1825 and 1842, unless they are repealed.
    6. The decision of the Circuit Judge in this case is in effect declaring that these acts are repealed, and the decision of this Court in the case of Winchester vs. Bear-din is overruled. Now, is this so ? The act of 1843 does not legislate upon the same subject that the other acts legislate upon. The act of 1843 declares the duty of officers; the others fix the liability of the stayor. The acts of 1825 and 1842 are not expressly repealed by the act of 1843, nor does it repeal them by necessary implication, because they may well stand together, as we have seen. And nowhere in said act does it appear that the Legislature intend to change the liability of the stayor from that of a primary liability to that of a mere surety for the original surety. Nor does this Court so decide in 11 Humph. R., 445, or 1 Sneed’s R., 362-364.
    7. This is an action for money paid, laid out, and expended by the said defendant in error as the surety of the plaintiff in error, and at his special instance and request ; and before he can recover, he must show that he originally became bound as the plaintiff’s surety, at his request, in consequence of which he has had the judgment to pay, or that he paid the judgment at the special instance and request of the plaintiff in error, neither of which facts are proved in this case. On the contrary, the defendant in error was specially requested to become the stayor of this judgment by the original principal. Therefore, the defendant in error cannot voluntarily become bound and pay money for the plaintiff in error, and then charge him with the amount. Burge, 865; Pothier on Obi., No. 440; 3 Mete. R., 169-171; Chitty on Con., 8th Am. ed., 512, 513, 516a; 1 Sneed’s R., 501-513; 4 N. Hump. R., 138; 9 Mete. R., 346; 5 John. R., 175.
    8. This suit and judgment are against the plaintiff in error as the executor of Whiteside, deceased. Now, is it possible that this estate can be held liable to the defendant in error, who never was the surety of said testator in his lifetime, nor did he ever become such after the death of said testator, at the request of his executor; nor did he ever pay any money for said testator in his lifetime, or for his estate since his death, at the request of his executor. Tom vs. Gcoodrieh et al., 2 John. R., 213, et seq.
    
    Gantt, for the defendant, in error.
    Eor Campbell, the defendant in error, I insist that the surety is liable before the stayor, where the judgment does not recite and show the fact of suretyship. See acts of 1842 and 1843, Nich. Sup.; Beeler vs. Sail, 11 Humph., 445; Cfrissom vs. Moore, 1 Sneed. These authorities conclusively establish Campbell's right to recover.
   McKinney, J.,

delivered the opinion of the Court.

This -was an action of debt on simple contract, brought by Campbell against Chaffin as executor of R. C. White-side, deceased, to recover the sum of $358.88, alleged to have been paid, laid out, and expended by the plaintiff to and for the use of the defendant’s testator. The plaintiff recovered in the Court below, and the defendant appealed in error.

The facts were agreed upon, and are substantially as follows: On the 29th of May, 1852, one* J. P. Campbell executed a bill single to John Glenn for $300, with R. C. Whiteside (defendant’s testator) and W. W. Campbell as his sureties. Said bill single not being paid, suit was commenced thereon jointly against the principal and his sureties before a justice of the peace; and on the 7th of November, 1853, a joint judgment was rendered against all the defendants, the relation of the defendants as principal and sureties not being “recited in the judgment.” Upon this judgment, C. M. Campbell, the plaintiff in the present action, became surety for the stay of execution, at the special request of J. P. Campbell, the principal debtor. Afterwards, on the 4th December, 1854, Campbell, the stayor, was compelled to satisfy said judgment, then amounting to $358 88. To recover this sum of money from Chaffin, the personal representative of one of the original sureties, was the object of tbis suit, and a recovery was had for the full amount paid by the stayor, with interest thereon from the time of payment. It does not appear that any attempt was made to recover the money from the principal, nor is any reason disclosed for the omission to pursue him or the other surety.

It is clear, in any view of this case, that the recovery had against the plaintiff in error cannot be supported. 1. This is a common law action, and if the established principles of the common law are to govern, the judgment is palpably erroneous. The ground of the action is, that the plaintiff Campbell was surety for Whiteside, and that, as surety, he was compelled to pay the debt of his principal. The relation of surety and the payment of the debt being established, the surety is entitled to recover the amount paid; and this he can do without express proof that the principal debtor either requested him to pay the money or promised to repay him; for in such case the law implies not only a previous request, but also a promise to reimburse him. But it is a well-settled principle of law, that a party, by voluntarily paying the debt of another, cannot entitle himself to any right of action against that other for the money so paid, in the absence of a previous request or subsequent promise.

In the present case, the proof not only fails to establish the relation of principal and surety as between the plaintiff and defendant’s testator, a previous request or subsequent promise, but the contrary is distinctly proved. It is expressly admitted, in the statement of facts agreed upon by the parties, that the plaintiff “became the stayor of the judgment at the special request of Campbell, the principal debtor.” And there is not an intimation in the record that either of the original sureties knew of or joined in sueh request, or afterwards assented to it. The payment hy the plaintiff, therefore, was as the surety of the principal debtor alone; for him alone he was surety, and not for the original sureties; and as to the defendant’s testator, the payment was voluntary and officious, out of which no right of action can arise.

Upon the facts of this case, it might with much more plausibility be asserted that the plaintiff, as stayor of execution on the judgment, would have been liable to the defendant’s testator, in case the latter had been compelled to pay the debt; upon the principle that one who becomes surety in the course of legal proceedings against the principal, has no right of contribution -against the original surety for the debt, but, on the contrary, the latter is entitled to be subrogated to the creditor’s right against him, as in the case of bail. See notes to Dening vs. Winchelsea, 1 Leading Cases in Eq.

2. It is equally clear that, in view of our statutory provisions in reference to “stayors,” and the decisions thereon, this action cannot be maintained. The cases in 11 Humph., 445, and 1 Sneed, 361, upon the construction of the act of 1843, ch. 32, have been altogether misunderstood and misapplied in the present case. These cases hold that, under the statute, a surety, in order to entitle himself, as against the plaintiff and the officer having process in his hands, to have the property of the principal debtor exhausted before his property shall be taken in satisfaction of the judgment, must on the trial establish the fact that he was merely a surety, and his relation as surety must be recited in the judgment, and also in the execution; and if the surety fail to have this made to appear as required, then, for all the purposes of satisfaction of such judgment, the surety is to be treated as a principal, and the plaintiff may proceed to subject his property in satisfaction of the judgment, passing by the property of the principal debtor. The act of 1843, it is said, in Grissom vs. Moore, 1 Sneed, 364, was designed to preclude all inquiry, after judgment, into the antecedent relations of the defendants; and this is certainly correct as respects all questions touching the liability of the defendants to the satisfaction of the particular judgment, and in this sense alone was' the principle stated in that case. But it certainly was not intended to assert that although the surety had subjected himself, by his own neglect to pursue the statute, to be treated as a principal debtor, at the election of the plaintiff or officer, he was to be precluded thereby, in any subsequent independent proceeding, instituted either on his behalf or against him, from showing his true relation as surety. .

Upon this misunderstanding of the principle stated in the case in 1 Sneed, it was assumed that Whiteside was to be regarded as a principal debtor for all purposes; and upon this assumption was based another, equally unfounded, that the plaintiff, by becoming the surety of Campbell, the principal debtor, for the stay of execution, was to be considered as the surety of Whiteside also. And upon these two most- erroneous assumptions the plaintiff’s recovery is grounded. The omission of the judgment and execution to show that Whiteside was only surety, while it subjected him to liability as a principal debtor to the plaintiff in that judgment, had no other effect. It certainly did not authorize the present plaintiff as stayor, under the circumstances of this case, to treat him as Ms principal, as has been attempted in this action.

If Whiteside’s suretyship had been made to appear in the judgment- and execution, the consequence would have been that, as between the stayor and the original surety for the debt, the stayor would have been primarily liable; and the original surety, if he had paid the judgment, might have recovered the amount from the former. See 10 Humph., 247. But by that omission in the present instance, Whiteside lost the right to interpose the stayor before being made liable himself; but this is the only prejudice to his rights resulting from the omission.

Judgment reversed.  