
    John S. James, Com’r in Equity, v. Robert Malone. The Same v. Ex’rs of Thomas Hill.
    Columbia,
    Jan. 1830.
    Where a sum of money has been made by execution against the principal debtor, on account of a debt for which his sureties are liable only in part, the latter are not intitled, against the creditor, to have the sum so made, apportioned between that part of the debt for which they are liable, and the part for which they are not liable.
    The doctrine of apportionments is purely an equity doctrine, and, even in a Court of Equity, is only allowed between parties standing in the same relation, and having the same equitable claims ; and a surety has no such equity against the person to whom he is bound.
    Tried before Mr. Justice' O’Neall, at Laurens, Fall Term, 1829.
    These were actions of debt on the guardianship bond of Charles Pitts, who had been appointed, by the Court of Equity, guardian of the person and estate of Frances Bell, a minor. The defendant in the first case, and the testator of the defendants in the second were sureties to the bond; but, shortly after it had been executed, applied to the Court of Equity to be relieved from further responsibility, and were discharged by an order of that Court. In the mean time, however, Pitts had received $1500, for his ward ; and subsequently to the order of discharge received an additional sum, also the property of his ward. The ward afterwards intermarried with James Wright, who filed a bill in Equity, in the name of himself and wife against Pitts, for an account of his guardianship, and obtained a decree for $2749, including the sums received by Pitts both before and after the discharge of his sureties. Execution was sued out on this decree, and a considerable sum was'made under it by the sale of Pitts’ property; but there still remained due, a large balance, for the recovery of which these actions were brought.
    The presiding Judge instructed the jury, that under the decision of the Court of Appeals, in the case of Cureton v. Shelton, 3 M’C. 412, the defendants were protected by the order of discharge, from any responsibility for the subsequent acts of their principal; but that they were still liable for the money, which came to his hands before that order was made. That they were intitled, however, to have' a rateable proportion, of the sum made by a sale of Pitts’ property, applied to the credit of their liability. That sum had been made on an execution for an entire debt, for only a part of which the defendants were liable; and there was just as much reason to have the whole applied in exoneration of the sureties, as to have it applied only to that for which they were not liable. The true rule was, that where two have equal claims to a fund, they must take it rateably, and in proportion to their respective demands.
    The jury found for the plaintiffs, in each case, in accordance with the views of the Court; and the plaintiffs now moved to open the verdicts, and for a new trial, on the ground of misdirection.
    Irby, for the motion.
    Henry, contra.
    
   Nott, J.

delivered the opinion of the Court."

Whether the Court of Equity exceeded its authority, in ordering the sureties to the guardianship bond to be discharged, is a question, on which we are not sufficiently informed, to enable us to form an opinion. We are merely informed of the fact, that they were discharged ; but in what manner, or under what circumstances, does not appear. It does, however, appear to me, to say no more of it, 10 be an extraordinary proceeding. If the sureties were discharged, it must have been on account of some delinquency, or mismanagement, on the part of the guardian. That such an order should be made, under such circumstances, without requiring an account, or without, requiring other security, or taking one step to secure the interests df the minor children, I hope is not to be understood as evidence of the usual course of proceeding in the Court of Equity. I will not, however, express any opinion as to the effect of the order. I will only observe that I do not think it derives' any support from the case of Cureton v. Shelton, to which the presiding Judge has referred. The ordinary acted, in that case, under the express authority of an act of the Legislature.

But admitting the sureties to have been legally discharged, they were still liable to any waste committed before that time. If the minor and her husband were able to make, up a portion of their loss out of the estate of the principal, it was their good fortune ; but these defendants can derive no benefit from it. The doctrine of apportionments, which the Judge has introduced, is purely an equity doctrine, and one to which a Court of Law can seldom, if ever, resort. And, even in a Court of Equity, it will be allowed only between parties standing in the same relation, and having the same equitable claims. But a surety has no such equity against the person to whom he is bound. The plaintiffs, therefore, were certainly iutitled to a verdict for the fifteen hundred dollars, if no more. The motion for a new trial must be granted.

Motion granted.  