
    [Chambersburg,
    October 17, 1826.]
    HILDEBRAND against DEARDORF.
    IN ERROR.
    Defendant was surety with P., for land taken by P. at an appraisement, in a re. cognizance for the payment of distributive shares, one of which belonged to the ward of I). 1’). afterwards took a bond from defendant and P., with a view to release the recognizance, on which bond the present suit was brought. After this suit, JJ. instituted an action on the recognizance, to recover an amount of interest for which he had taken P’s. note, and had judgment, and a levy on the lands, and a return of unsold for want of buyers: Held, to be no defence to the present claim, either in whole or in part.
    This was a writ of error to the Court of Common Pleas of Adams county.
    
      Henry Pickering, and John Hildebrand, his surety, entered into a recognizance to the Orphans’ Court of the .county of York, ■conditioned to secure the payment of the distributive shares of his brothers and sisters, arising from the estate of his father, taken by him at the appraisement. After the recognizance was taken, the plaintiff in this suit, who was the guardian of Rebecca Pickering, a daughter of the intestate, made an arrangement with Henry Pickering and John Hildebrand, to release the recognizance, so far as respected Rebecca’s claim, and to take, instead thereof, the bond of them, for the recovery of which this suit was brought.
    The defence relied on was, that, in pursuance of an agreement between Henry Pickering, the principal, and John Deardorf, the guardian, and without the consent of the surety, a scire facias was issued against Henry Pickering, on the recognizance, at the suit of Rebecca, a judgment obtained, on which there was a fieri facias upon which there a levy on the land taken at the appraisement, a venditioni exponas, and a return by the sheriff', that the land remained unsold for want of buyers. It appeared, that the proceeding in York county was intended to secure only the amount of interest, indorsed on the bond, as paid, which never had been received, Deardorf, having taken the note of Henry Pickering for the amount, which note Pickering had failed to discharge. The plaintiff gave the defendant credit for the payments indorsed on the bond, and relied upon the proceedings in York county, to recover it from Henry Pickering the principal. The suit on the recognizance was instituted since the commencement of this action.
    The defendant contended that these circumstances were an absolute discharge of him, as surety; and, secondly, if not an absolute discharge, they constituted a defence pro tanto.
    
    
      
      Carothers, for the plaintiff in error.
    We were discharged from the amount of the credits on the bond by the receipts indorsed, and the note given for those sums by Pickering. The release of the recognizance was the consideration of the bond, and the benefit we derived was having the land bound by this and other recognizances released, and the fund pledged for other recognizances, on which we were personally liable, enlarged so as to enable the plaintiff to get satisfaction out of that fund without recourse to us. By again coming on the land, we are injured pro tanto as to every thing drawn from it. The plaintiff was bound to look to Pickering for the amount of the note, and not to recover it out of our fund, which he had released. Having obtained from us, we are entitled to a credit pro tanto on that ground, and also to a further credit for the same sum on the ground of his having released so much of the bond, in consideration of the note drawn by Pickering.
    
    
      Stevens, contra.
    This defence ought to have been set up in the scire facias On the recognizance. It cannot be set' up in a suit which was brought long before these transactions took place. None but transactions relative to the contract which is the meritorious cause of action, can be made the ground of a particular equity. Equity arises from intrinsic and not extrinsic circumstances. The court gave' the party all he asked. By giving the notes, there was only a change of security for the same debt.
    ' Carothers, in reply.
    If judgment had been obtained on the notes, and the land bound by the recognizance had been levied, it would have been sold subject to the recognizance, which shows that' the bail was injured by the sale on the recognizance.
   The opinion of the court was delivered by

Rogers, J.,

(after stating the case.) I cannot perceive how Hildebrand, the surety, can be considered as absolutely discharged from his liability in this bond. It is not put to the court and jury on the ground of an actual fraud, or combination between Pickering .and Deardorf, to cheat and defraud Hildebrand, the surety. Had there been a combination between them to cheat and defraud the surety, out of part of an entire sum, it would, I apprehend, so far as respects the surety, have avoided the whole bond. It would have proved a complete defence to the whole amount claimed in this action. If, however, the defendants relied upon an actual fraud, the attention of the court and jury should have been drawn to it, either by a plea of fraud, or by notice of special matter, in which the fraud and combination should have been distinctly charged. It has been ruled in a case decided at Lancaster, ( The President of the Orphan’s Court, for the use of Graff and others v. Graff,) to be insufficient to state facts and circumstances, from which a jury may infer fraud.

If that had been the issue here trying, what difficulty could the jury have had? It certainly was not in the contemplation of Deardorf and Pickering to defraud Hildebrand. The arrangement was merely intended by them to secure the payment of the interest indorsed on the bond as paid, when in truth and in fact it remained unpaid. Not that the surety should pay, but that it should be taken out of the funds of the principal.

It will be observed, that I take the distinction between an actual and a legal fraud. In the one case, it would avoid the whole bond; in the other, it would be an avoidance pro tanto only. And this leads me to consider, whether this be a defence pro tanto; whether the surety has received any injury whatever, from the arrangements and proceedings of his principal, and Deardorf, the guardian of Rebecca.

What may be the effect of the proceeding in York county; whether they have or can lessen the security of Hildebrand, as bail in the recognizance, it is unnecessary here to determine. Is it a defence to this action? If it be a defence pro tanto, it can only be for the amount actually received. Here the suit was brought in York county, after the suit in Adams county; and at the time of trial nothing had been recovered. It is true, a judgment had been obtained, a fieri facias and venditioni exponas had been issued; but the land had been returned unsold for want of buyers. What sum then could the jury have deducted from the bond? clearly not the amount of the judgment, for peradventure it may never be recovered. I cannot therefore perceive how Hildebrand has sustained such an injury, as to avail him, in his defence to this suit. If his interest be affected, on which I would not wish to be understood as giving any opinion, he must resort for redress to the Court of Common Pleas for the county of York.

Judgment affirmed.  