
    Hyde v. Tracy.
    In the Court below,
    Elisha Tracy, Petitioner ; Elisha Hyde, Uriah Trac y, Ebenezer Thomas, Simeon Thomas, Joseph Coit, Daniel Tilden, Asahel Clark, and Zachahiau Chapman, Respondents.
    
    Where one. of several plaintiffs in error,against whom a decree had been made in the court below,moves to withdraw: the writ of error without the consent of the rest, the retraxit of the person making the ; motion will be entered on the record, and t he cause proceed as between the rest and ⅛⅜ opposite party.
    rpi 1 HIS case being called on to be agued, Hyde, one of the plaintiffs in error, moved to withdraw the writ of error.
    
      Ingersoll and A. S[¡aiding, for the rest of the plaintiffs in error,
    did not object to Hyde’s withdrawingybr himself, but contended, that this act of his should not affect the rights of the rest ; that the case should still proceed to trial between Mem and the defendant in error. It was necessary, that all the parlies to the suit below should be made parties to the writ of error ; and in England, the practice is, if any one or more of them refuse to appear, and assign errors, to summon them in, and obtain a judgment of severance against them ; after which the writ of error may be proceeded in without them. But no practice of summons and severance has been adopted in this state ; nor is any such practice necessary. After one of the plaintiffs has made default of appearance, or has moved to withdraw, aa entry thereof is to be made on the record, and then the case is to ... proceed as m England after judgment of severance.
    A B.'and C. •with seven other persons, made a purchase, and gave their joint bond. All signed as the securities of each,though they were severally to pay different shares of the amount. A, became bankrupt, before payment of his share. ⅛ then paid one ninth part of A.’s share, and a small sum over; after •which B. brought a bill in chancery agamst the other co-obligors, for a contribution. The court decreed, that each of the respondents to that bill should pay to the obli-gee one ninth part of the loss arising from the bankruptcy of A. and also pay to the complainant one eighth part of the surplus advanced by him.
    It is no objection to such decree, that the obligee of the bond was not made a party to the suit.
    
      Daggett, contra,
    contended, that the non-suit of one was the non-suit of all, except in those cases in which judgment of severance might be had ; but that there could be no judgment of severance in personal actions ; nor in any case, wherein the persons who have joined might have had separate actions. There washo necessity of joining Hyd% in this writ of error. The cpurt below, in making their decree, had respect to the separate interest of each of the defendants. One of them waá satisfied with the decree as it respected himself. If the others were dissatisfied, they might bring a writ of error, without joining him.
    By the Court, unanimously, it was decided, that Hyde could not withdraw the writ of error, so as to prevent the other plaintiffs from proceeding with it as betweem them and the opposite party. The personal retraxit of Hyde, however, was ordered to be entered on the record. The case was then heard
    
      On the merits.
    
    It was a petition in chahcery, praying for the interposition of the court, under the following circumstances : On the 3d of September, 1795, the petitioner and respondents, with Jacob Ogden, executed their joint bond to the treasurer of the state, conditioned for the payment of the sum of $57,400, with interest payable annually, from tbe 1st of September, 1797 ; which bond was given for land in the Connecticut Western Reserve, purchased of the state, Of the principal and interest, it was the duty of the petitioner to pay g 10,500 ; it was the duty of Ogden to pay S‘J.400 ; it was the duty of Clark, Capman and Tilden to pay §3,600 ; 'and it was the duty of the other respondents to pay the residue, but in unequal proportions ; the several persons mentioned being interested in the original purchase to the amount which it was the duty of each respectively to pay. The petitioner and the respondents all signed the bond, at the request of Ogden, as his securities, for the payment of his share ; which, at the time of executing the bond, they all considered him tobe of sufficient ability to pay ; but before the same became due, and before any part was paid, he became bankrupt, and was discharged from the payment of his debts, by an act of insolvency ; by means of which, the whole sum devolved on his sureties as a total loss. Of this loss, the petitioner had paid one ninth part, and §333 34 over ; Clark, Chapman and Tilden, had paid §542 ; the residue, owing to a dispute among the co-obligors as to the amount which each ought to pay, remained unpaid. A suit had been commenced, and judgment rendered, against the petitioner alone, for the whole sum clue on the bond, which he was unable to pay, and its collection against him alone would be very injurious, if not ruinous. After finding these facts, the court further found, that according to the nature and terms of the original contract between the parties, it was the duty of each to pay one ninth part of the loss arising from Ogden’s bankruptcy ; and thereupon decreed, that each of the respondents should pay to the treasurer such ninth part, and also pay to the petitioner one eighth part ef the sum advanced by him beyond his proportion.
    
      lngersoll and A. Spalding, for the plaintiffs in error,
    took three exceptions to the decree.
    1. That it subjected all the respondents to an equal share of the loss arising from Ogden’s insolvency ; whereas they were not his sureties merely, hut were co-obligors with him in a bond for a joint purchase, in which they were interested in unequal shares ; and ought, therefore, to be subjected in proportion to their respective interests.
    
    2. That if the petitioner was entitled to an equal contribution from all the co-obligors, he ought to have sought it at law, and not in chancery. Had he claimed, that they ought to contribute in different proportions, hemight, indeed, have applied to a court of chancery to settle the proportions of each ; but, on the ground that they were all liable equally, the legal remedy would be adequate. Besides, the petitioner was premature in his application ; for he had not paid the money.
    3. The decree, from its nature, cannot be final. It directs a sum of money to be paid to the treasurer of the state, who is not a party to the suit, under a penalty to the petitioner. Payment of the penalty to the petitioner would not conclude the state.
    
      Daggett and Goddard, for the defendant in error,
    contended,
    1. That as it appeared from the record, that the petitioner and respondents all signed the bond, at the request of Ogden, as his securities; the correct inference of law is, that each must pay an equal share of the loss.
    3. That chancery interferes, not merely where there can be no remedy at law, but where such remedy, under all the circumstances of the case, will not meet its exigencies. In this case, it might ruin the petitioner, to pay the whole, and then go to law fora contribution. In Great-Britain, it is the constant practice to go into chancery to obtain a contri-* button.
    
      3. That it would have been useless to make the treasurer a party, lie could not be compelled to give a discharge, until the whole sum due on the bond should have been paid. The court below have done all that, at present, they can do ; and it can never be an objection to a decree, that it does not provide for every future contingency.
    
      
      
         2 Sel. Prac. 536, Dub. edit. 2 Tidd’s Prac. 1053, 4, enlarged edit. 3 Burr, 1789, Knox v. Costello.
      
    
    
      
      
         6 Rep. 25, Ruddock’s case. 6 Bac. Abr. 403, Guil. edit.
      
    
    
      
      
         6 Rep. 25, Ruddock's case. 6 Bac. Abr. 404, Guil. edit.
      
    
    
      
      
         Ibid ms.
      
    
   By the Court,

unanimously,

The judgment was affirmed.  