
    M’Cormack’s Administrator v. Obannon’s Executor and Devisees.
    Monday, Nov. 25th, 1811.
    Equitable Relief — Contribution of Sureties. — A Court of equity -will not compel a security in a bond to contribute to the relief of his co-security who has been forced to pay the debt, unless it appear that due diligence was used, without effect, to obtain reimbursement from the principal obligor, or that he was insolvent.
    This was a suit, in the superior Court of chancery for the Staunton district, by the appellant against the appellees. M’Cormack, the plaintiff’s intestate, had been co-security with Obannon, for a certain Richard Boucher, in a bond to Henry Whiting, on which judgment was obtained by the creditor, and execution being issued, was satisfied by M’Cormack alone, whose administrator, therefore, sued the representatives of Obannon, for contribution. The following opinion and decree was pronounced in the cause by Chancellor Brown, the 24th of July, 1808.
    “The Court is satisfied, from the evidence in this cause, that the plaintiff’s intestate, and the testator of the defendant, were co-securities of Richard Boucher; that the plaintiff’s intestate, on the 1st day of October, 1793, discharged the whole debt; and there is no evidence to prove that he ever received, either from Boucher or Obannon, any payment or indemnity. Obannon was dead before judgment was had on the bond, and it is not pretended that any payment was made by him. Boucher, it appears, remained in Berkeley county for about ten *years after the judgment against him and his securities, and about two years after payment by M’Cormack; during which time, or the greater part of it, he was possessed of both real and personal property, of which the debt might, by possibility, have been made. He is not made a defendant, although it is possible he might have proved a payment, or satisfaction, to M’Cormack or Whiting. This omission, with the length of time between the payment by M’Cormack, (who, it appears, lived about nine months after the payment,) and the institution of this suit, might raise a presumption of payment by Boucher; although(it must be admitted that the presumption arising from these circumstances in the cause-'”
    
    “The cause of action commenced 1st October, 1793; suit is instituted the 16th day of August, 1805, nearly twelve years after; and the statute of limitations is relied on by the defendants. This, it is contended, does not apply to the present case; 1st. Because co-securities are trustees for each other; 2dly. The payment, by M’Cormack, must relate back to the date of the bonds and, 3dly. M’Cormaok is to be considered a bond creditor.”
    “1st. In whatever light Courts of chancery might formerly have viewed co-securities, in order to bring them within their control, and to do whatever was considered just and equitable between them, when, perhaps, no other tribunal had cognizance of their case, I cannot, since our act of Assembly has given them relief against each other at law, see why their undertaking should be considered such a trust as would bar the statute of limitations, which is, equally respected by Courts of chancery and of law, except in cases exclusively within the jurisdiction of the former.”
    “2d. If the payment by M’Cormack, in-1793, can be considered as relating back to the date of the bond, in *1783, so as to make it a debt of Obannon’s. to that date; and if the will of Obannon can be construed into an acknowledgment of that debt, and an assumpsit to pay it whenever it should be demandable by M’Cormack as his co-security, although this did not happen until nine years after his death ; this is placing M’Cormack only where our act of Assembly has placed him. But if it is supposed that the devise in Obannon’s will, viz. “I desire that all my just debts be paid,” imposes a duty upon the representatives of Obannon against the defendant, of which the statute affords no-bar ; this supposition is believed not to be correct whenever the duty (as here) is de-mandable at law. The devise, in such case, it would seem, ought to have no greater or other effect than a promise of payment by the testator in his lifetime; viz. to revive the right of action ; and not to create such a trust as would prevent the executor, after the lapse of five years from his qualification, from pleading the statute in bar. Tor one ground of the statute is the presumption of payment arising from the length of time,” &c.
    “In this case, the cause of action, which, under our act of Assembly, was purely legal, arose nearly twelve years before the commencement of this suit; and I cannot see why it should not be barred by the statute, unless the plaintiff is to be considered a bond creditor of the defendants.”
    “3d. If the plaintiff was now coming in with other creditors, for a distribution of the estate of Boucher, he would be considered as standing in the shoes of Whiting, the obligee, or, rather, Whiting, the judgment creditor; and this upon the general rule adopted for the marshalling of assets.”
    “This is the doctrine laid down in the cases of Eppes v. Randolph, (2 Call, 125,) and Tinsley v. Anderson, (3 Call, 329). But this doctrine is not applicable, it is believed, in this case, where one innocent security is seeking contribution from another innocent security. It *is unnecessary to say how far this Court would have interfered, if M’Cormack had obtained an assignment of the bond after payment; that has not been done.”
    “The case of Parsons & Cole v. Prud-dock, 2 Vernon, 608, was a case between the securities in the bond, and the special bail who was considered, by the Court, as ■the oblig-or himself, and on that ground decreed to pay the amount of the judgment to the securities, without contribution on their part. It is, therefore, adjudged, ordered, and decreed, that the bill of the plaintiff be dismissed, but without costs; this being a claim which the administrator might well conceive it his duty to prosecute.”
    From this decree the plaintiff appealed.
    Williams, for the appellant.
    No counsel for the appellees.
    
      
      Equitable Relief — Contribution of Sureties. — Equity will not «compel a surety to contribute, unless it appear that due diligence had been used without effect, to obtain reimbursement from the principal debtor, or that he is insolvent. McMahon v. Fawcett. 2 Rand, 531, citing the principal case. The principal case is also cited in Galt v. Callanci, 7 Heigh. 603.
    
    
      
      The sentence here is not finished. The record seems to be incomplete. — Note in Original Edition.
    
   Thursday, January 7, 1813, the president pronounced the opinion of the Court; ■“that (not deciding any other point in this cause) the Court is of opinion that it does not appear that due diligence was used to obtain the sum claimed of the principal obligor, Richard Boucher, nor that he was insolvent; and that there is no error in the said decree, which is, therefore, affirmed.”  