
    Cowan vs. Duncan.
    Principal and Surety. Contribution — sureties for successive appeals are not co-sureties. If a judgment, rendered by the county court against two, is affirmed in the circuit court against them and their surety for the appeal, and again affirmed in the supreme court against the three and their surety for the second appeal, the first and last sureties are related as principal and surety,not as co sureties; and if the first pay the judgment, he is not entitled to contribution from the second.
    On the 30th of March, 1833, William P. Campbell and George W. Richardson, of Franklin county, executed their note to Johnson and Rayburn, Merchants of Nashville, for five hundred and ninety-seven dollars, seven cents, payable one day after date. On the 19th of July afterwards, Johnson and Rayburn sued them on this note in the county court of Franklin, and at November session, 1833, recovered judgment. The defendants appealed to the circuit court, and gave Stewart Cowan as surety for the appeal. At January Term, 1834, of the circuit court, the judgment of the county court was affirmed, and judgment rendered against Campbell, Richardson and Cowan for the amount of the judgment of the county court, and twelve and a half per cent, per annum damages. From this judgment Campbell, Richardson and Cow-an appealed in error to the supreme court at Sparta, and they all joined as principals in an appeal bond with Joseph Duncan as their surety. At August Term, 1835, of the supreme court, the judgment of the circuit court was affirmed, and judgment was pronounced that the plaintiffs “recover against the said William P. Campbell, George W. Richardson and Stewart Cowan, the surety for the prosecution of the appeal from Franklin county court to Franklin circuit court, aud who joined in the writ of error to this court, the plaintiffs in error, and Joseph Duncan, their surety for the prosecution of the writ of error to this court, the sum of,” &c.
    
      Aji.fa. to have execution of this judgment was issued to the sheriff of Franklin, who, on the 23d of February, 1836, thereupon sold 250 acres of land, as the property of Cowan, for 750 dollars, and returned the execution to the clerk’s office of the supreme court.
    On the 30th of May, 1838, Cowan, upon a copy of the foregoing proceedings, moved in the circuit court of Coffee, before Judge Makchbanks, for judgment against Duncan for his ratable proportion of the above recited judgment of the supreme court, “in favor of Johnson & Rayburn against Richardson and Campbell, and the said Cowan and Duncan as their sureties.”
    His Honor refused the motion, and Cowan appealed in error to this court.
    Taul, in support of the motion, said, the ground upon which it was overruled was, that Cowan had joined Campbell and Richaidson in their appeal to the supreme court, and that consequently Duncan was surety for him, as well as for Richardson and Campbell.
    The record of the entry praying the appeal, from the circuit to the supreme court, states, that the appeal was prayed by the defendants.” The appeal bond recites that R. & C. and Cowan, prayed for and obtained the appeal.
    The plaintiff contends that he and the defendant were co-sureties for R. & C., and as he paid the whole amount of the judgment, that he ought to have a judgment over against Duncan for a moiety thereof.
    Laughlin, for the defendant,
    said, the motion must be founded upon the acts of 1801, c 15, § 1 and 2, and 1809, c 69, § 2 and 3; and the demand of the plaintiff to a recovery on motion, or in any other way, does not come within the provisions of these acts. Duncan was not the co-surety of Cowan for Campbell and Richardson, but he was the surety for Cowan, and Campbell and Richardson, who all jointly appealed from the judgment of Franklin circuit court, when Duncan became their surety. There is no law by which he can be bound to contribute a rateable part of what Cowan has paid. To give Cowan recourse over upon Duncan in this motion, or in any other way, would be allowing a principal to call upon his own surety to contribute to the payment of the principal’s liability. In the appeal bond to the supreme court, the first and only obligation Duncan entered into, Cowan, as well as Campbell and Richardson, was a principal; and if he, after paying the debt or judgment, can go back upon Duncan, under the acts of Assembly, for any part of the money, so can Richardson or Campbell, if they have paid it. Duncan is as much the surety of Cow* an as he is of Campbell and Richardson. If this is true, the judgment of the circuit court, refusing the motion of Cowan must be affirmed.
    January 23.
    
   Turley J.

delivered the opinion of the court.

The plaintiff became sureity for an appeal from the county court of Franklin to the circuit court, on a judgment in favor of Johnson & Rayburn, against George W. Richardson and Wm. Campbell.

The judgment of the county court was affirmed against Richardson and Campbell, and the plaintiff as their surety. They prosecuted an appeal in the nature of a writ of error to the supreme court, and the defendant, Joseph Duncan, became their surety therefor. Judgment was rendered in the supreme court against them, and the plaintiff has paid the whole debt, and now asks a contribution of one-half from the defendant, as his co-surety. He is, upon no principle, entitled to it; they never were co-sureties. When the defendant became surety, Judgment had been rendered against the plaintiff, and he was as much the surety of the plaintiff for the appeal, as of Richardson and Campbell; and if he had paid the money, would have been entitled to a judgment against him for the whole amount.

The judgment of the circuit court will therefore be affirmed.  