
    George Trescot v. John Smyth et al.
    1826.
    
      Charleston,
    
    rp JL HE bill stated that complainant together with Eliza Ashley Smyth now Eliza Ashley Bauxbaum, became joint sureties for John Smyth on a gaol bounds bond. That the said John Smyth having forfeited the condition thereof, the same was assigned by the sheriff of Charleston district to Thomas Wigfall, surviving executor John Wigfall deceased, the plaintiffin the action at law, who instituted an action thereon, recovered judgment, and issued an execution for the recovery of the amount thereof. This bill was brought for the purpose of recovering of John Smyth the amount thus paid by complainant for him; or to compel Eliza Ashley Bauxbawm to contribute her proportion of the debt. The bill also prayed a discovery as to a marriage settlement executed by Eliza Ashley Smyth and Robert Bentham and Martin Strobel; and that so much of the trust property might be made liable as would amount to the contributive share of the said Eliza Ashley Bauxbawm.
    
    
      To a till by XmXean-itislne" cessary to cipafdebtXá
    
      To this bill the deféndants all demurred. The defendant John Smyth on the ground that there was plain and adequate remedy at law, and the other defendants on the ground that there was another bill depending, embracing all the facts of this case, or which ought to embrace them.
    Thompson, Chancellor.
    With respect to the demurrer of John Smyth it must be sustained. It is true that the Court will interfere between principal and sureties, but is equally true that Courts of Law can do so too; and in this case the remedy at law was plain and adequate, by an action of assumpsit for money laid out and expended. The act of assembly, which is nothing more than the echo of the old law upon the subject, confines each Court to its known arid established jurisdiction; lest the encroachments so frequently made by Courts of Equity might ultimately swallow up the common law jurisdiction.
    The demurrer of the other defendants stands on different grounds. If they intended to avail themselves of there being two suits for the same cause of action, they should have done so by plea, and not by demurrer.
    These demurrers must therefore be overruled, and the defendants ordered to answer over, &c.
    The complainant appealed on the ground,, that John . Smyth, rbeing the principal debtor, was necessarily made a party, in order to protect the rights of all concerned, and to prevent a multiplicity of suits.
    17 March 1826‘
    To bills for goñs^nterest-™ust made parties but not so as ^^íotdls'
    Where aper- “ equity against one of several debtors, he ^[¿sthough he might have held one at law.
    
      Pepoon, for the motion.
    The only question in this case is, whether to a bill 'filed by one co-security to make another contribute it is necessary or admissible to make the principal debtor a party. He cited 2 Madd. Cha. Rep. 192. 451, 3Atk. 406, 2 Atk. 436, 2 P. Wms,313, 2 Dick. 738, 16 Yes. 326.
   CuRia, per

Nott, J.

It is a general rule in equity where a bill is brought for relief that all parties materially interested in the subject of the suit, however numerous,ed 1 • t , ought either in the shape of plaintiffs or defendants to be made parties, in order to prevent a multiplicity of suits. 2 Madd. Cha. Rep. 179, 80. It is otherwise where a discovery only is sought. There it is sufficient to make those parties from whom the discovery is wanted. In this case John Smyth is the principal debtor and was therefore an indispensable party to the bill. 2 Madd. Cha. Rep. 192. 2 Ves. 95. One of the exceptions to the rule is where some of the obligors to the bond are sureties. There it does not lie in the mouth of the principal, who has nothing to demand over, to say that the surety ought to be made a party. Cochburn v. Thompson, 16 Ves. 326. The ground on which the Chancellor sustained the demurrer in this is, that the complainant might have maintained an action at law against the principal. That is true — and if the bill had been against John Smyth alone the demurrer would have probably been properly sustained. But where a person is obliged to go into Equity for relief against one several debtors he must makeall parties, though he might i . , ° . have sued one at law. Thus where a bill is filed against legatees or distributees of an estate for an account, the executors or administrators must be made parties, because they may have paid the debt or have funds to pay with. Yet they might have been sued at law. • So where a bill is brought against the representatives of a deceased joint obligor the surviving obligor must be made a party though he might have been sued at law. And it is not unusual, where there are several parties to a bill, that one or more of the parties might have been sued at law, if the complainant would have been satisfied with a judgment against those only. Indeed it is frequently a good ground of equity that you bring together in one suit several parties who could not be joined at law. The decree, therefore, so far as it relates to thé defendant, John Smyth, must be reversed, and the defendants must answer over.

Decree reversed.  