text:
    The People, &c., to the use of Richard Markham et al., creditors of the estate of Louis Riter, alias Rider, deceased, appellants, vs. John White and James Webb, appellees.

      Appeal from Scott.

    As a general rule, whatever discharges the principal, operates to discharge the surety. But this rule is subject to an exception : where the discharge is caused by operation of law, and not by the voluntary act of the creditor.
    The rights of the creditor against the surety, are not impaired by mere delay, except where the surety has the right to require the creditor to prosecute the principal, and insists on the right, by giving him notice to prosecute.

      Where a Court of Prohato of one county has acquired full jurisdiction of an estate, it retains that jurisdiction until the estate shall be fully administered.
    Creditors, who do not labor under any of the disabilities named in the saving clause of the 115th section of 109th chapter of Revised Statutes, and who fail to exhibit their claims within two years after the grant of letters of administration, are precluded from all participation in the estate inventoried or accounted for, during that period.
    The time within which claims must be presented against an estate, is to be computed from the date of the letters of administration, and not from the date of the notice requiring creditors to exhibit them.
    It is a sufficient exhibition of a claim against an estate, to file the same, or a copy thereof, with the Probate Court.
    When a statute of limitations begins to run, it will continue to run until it operates as a complete bar, unless there is some saving or qualification in the statute itself.
    A surviving partner has a right to retain the partnership clfects, and settle up the affairs of the partnership. The effects are first to he applied to the payment of the joint debts; the surplus should be divided between the survivor and the personal representatives of the deceased partner.
    Should the surviving partner be guilty of laches or had faith, the administrator of the deceased partner may interfere by bill in equity.
    This was a bill in chancery, filed for the use of the creditors of Louis Riter, alias Rider, deceased, against the defendants, as sureties of William Parker, who was appointed and qualified by the Probate Court of Morgan county, administrator, with the will annexed, of said deceased, in September, 1838, for the settlement of said estate. The administration bond being the foundation of the suit; breaches of its condition being alleged.
    The bill alleges that Rider made his will on 31st August, 1838, disposing of his property, after payment of his funeral expenses and just debts, without appointing any executor; and that he died about that time. That the will was proven before the probate justice of Morgan county, in September, 1838, who granted letters of administration, with the will annexed, to William Parker, and that he and defendants executed bond on the 5th of September, 1838. That warrant of appraisement was issued on 24th September, 1838, and that effects were appraised, on 19th October following, to $1,011 56. That effects were sold on 20th October, 1838, for $ 836 41, but of the terms of the sale complainants are unadvised, hut they charge that the administrator did not take from the purchasers at said sale, bonds with good security, as he ought to have done, and as the law required. That Rider, at the time of his death, was in partnership with the defendant Webb, who has left the state wholly insolvent. Sets out divers claims against the estate of Rider, some of which were sworn to, and filed in the office of the probate justice, during the life of Parker, the administrator. That there is no further vestige of the administration of the estate of Rider in the probate office of Morgan county. That Parker never gave any notice of a day to audit claims against tile estate of Rider, and that he wholly mismanaged and wasted the estate, or appropriated to his own use, anterior to his death, which occurred in Scott county, about-the 4th of May,’,1839. That Parker died intestate, and in May, 1839, administration was granted in Scott county on his estate, to Martin Eikelburner, whose bond was in the penalty of $ 4,000. At about the same time, Eikelburner made an irregular, abortive and void attempt to administer on the estate of Rider, and entered into a bond for that purpose of only $ 100. That said administration was not a regular and operative administration de bonis non of the estate and effects, because it was not obtained in Morgan county. That Eikelburner having departed this life on the 15th January, 1839, defendant "White was appointed administrator de bonis non of Parker’s estate, and as such, settled up his estate, paying distributive shares thereof to a large amount, without taking any refunding bond; he having actual or constructive notice that the estate of Rider had not been settled up. That defendant White administered on the estate of Eikelburner; which estate was insolvent.
    The bill avers the breach of the condition of the bond sued on, and asks that defendant White render an account of the estate of Rider, to be disposed of in due course of administration, under the sanction and direction of the Court, &c. The ansWer of White admits the death and testacy of Lewis Rider, not Riter; says the will was not so executed and published by Rider as to be valid as his will, and that probate of the will, and subsequent proceedings, are null and void, because in the name of Riter. Admits execution of the administration bond, conditioned for administration of estate of Lewis Riter, and that, as no such person existed, there could not be any estate to be administered upon, and White could not be chargeable as surety. Admits appraisement—giving a copy of the certificate of the appraisers, who say, “ that James Webb has an equal and undivided interest in all of the above property—as the said deceased and the said Webb were partner's”—and says, thatPeetz, one of the appraisers, is one of the creditors to whose use the bill is filed. Admits the sale of Rider’s effects, and gives the certificate of clerk and crier, that they “ do verily believe that James Webb is entitled to one half of the proceeds of said sale, as he and the said deceased were partners in trade.” Sale said to have been made on a credit of nine months. Does not say whether bond and security were given by purchasers, but supposes that Parker took notes with adequate security. Says that Webb, at the time of the sale, took possession of the articles bid off by him, and also of other property, and that as far as he did not, took satisfactory notes, which passed into the hands of Eikelburner, as administrator of estate of Rider. Brings into Court $ 55 50, subject to its order. Admits partnership between Webb and Rider, and alleges that Webb had the largest interest, and that, at the institution of suit, he was insolvent, and absent from the state. States that he, White, got into the suretyship by accident; and that, as the estate of Rider consisted of his interest in partnership effects, which survived to Webb, Parker had no right to take possession thereof, and could not, by doing so, charge respondent as his security. That respondent was only willing to be surety that Parker would properly administer what might belong to Rider, and not the partnership effects of Webb and Rider. That respondent knows nothing of the justice or origin of the claims set out in the bill. If just and unpaid, statute of limitations pleaded to the same. Sets up the survivorship of the joint property in Webb, that Parker got possession of effects during the sickness of Webb, and sold it against the consent of Webb; that Webb repossessed himself of the effects rightfully, and never gave any note for the same. Denies that the estate of Rider has been mal-administered; neither admitting or denying that notice was given to the creditors, to file their claims against the estate. States death and intestacy of Parker, Eikelburner’s administration on his estate, and his (E.’s) attempt to administer de bonis non, oh the estate of Rider. Insists that the widow and heirs of Parker, and the securities of Eikelburner, should be made parties to suit; and for want of parties that bill should be dismissed.
    At September term of the Scott Circuit Court, Woodson, Judge, presiding, the suit came on to be heard, on bill, answer, replication, exhibits, &c., and a decree was entered that the sum of $ 55 50, paid into Court by the defendant, be paid to the complainants, rateably; and that for any thing further sought to be recovered, the bill be dismissed. Complainant prayed an appeal ; which was allowed. Appellant assigns for error, that the Court did not decree that the appellee should account the sum of $ 836 41—amount of sale bill, with interest, &c.
    David A. Smith, for appellants :
    That the legal scope of the condition of the bond sued on, was and is, that Parker, or his proper legal representative, should administer on Rider’s estate, according to law, and so as to secure and protect the rights of his creditors. And that the facts of this case come within the purview, of the legal liability of defendants as sureties; notwithstanding the principles of strictissimi juris, under which it is attempted for them to fritter away all obligation in the case. 13 Johns., 437. That Eikelburner’s attempt at administration on the estate of Rider, in Scott county, was a nullity, not being according to the statute, or in the proper county. Statute, “Wills,” sec. 70. That if this objection is not available, what was done in that county did not help or heal the past mal-administration of Parker. 5 Monroe, 583, Pawling vs. Speed’s Ex’r. As to dissolution of partnership by death of Rider, and relative and respective rights of representative of the deceased partner, and the surviving partner, see Story on Partnership, secs. 89, 90, 322, note 1; 326, note 3 : 342, 346, 347, 351. The statute of limitations, on plea of non-presentation of claims, not pleadable to suit on bond for settlement of the estate. If recovery of the claims had been sought by suing on them in debt, none of them were barred. Not barred by not filing them in the Probate Court, because no day in Court for presentation and adjustment of claims was ever appointed or advertised. See title “Wills,” secs. 95, 101, 115, 116.
    Brown & Yates, for appellee,
    Referred to the following authorities: 3 Kent’s Com., 63 to 69; Phillips vs. Atkinson, 2 Bro. Ch., 272; 7 Paige’s Ch., 34, 35; Story on Part., secs. 326, 327, 328, 329, 330, 344 to 347; Washburn vs. Goodman, 17 Pick., 537; Reynolds vs. Hall, 1 Scam., 35; People vs. Moon, 3 Scam., 125-6; 1 Gilman, 583.
    Aside from other grounds of defence, the general statute of limitations, as well as statute of limitations touching final settlements in Probate Courts, protect White from responsibility, as administrator of Parker. Thorn vs. Watson’s Adm’r, 5 Gilman, 26. As to proper parties, see 4 Scam., 426; 2 Gilman, 585.
    Wm. Thomas, on same side :
    The bill shows, that White has settled his accounts as administrator of the estate of Parker, and paid over to the distributees their respective portions of that estate; the complainant is therefore estopped to deny this state of facts. The evidence, however, shows, that this settlement was regularly made, as stated in the answer, on the 15th June, 1844. Upon this state of fact, it is contended: 1. That the heirs of Parker should have been made parties to the suit. 2. That no recovery can be had against the administrator. Revised Statutes, 558, sec. 102 ; Thorn vs. Watson, 5 Gilman, 28.
    The answer of White, upon oath, shows, that the property inventoried and sold by Parker, administrator of Rider, was held and owned by Parker and Webb as partners, and that Webb, as surviving partner, had the right to the same. The evidence sustains the answer, and shows, that Rider and Webb were insolvent; or rather, that they invested all that they had, of means and credit, in building a house; that the house was blown down and was a total loss. The answer and evidence taken together show, that although Parker inventoried and sold the property, as stated in the bill, yet the property belonged to Webb, as surviving partner, and that he obtained most of it, without paying any thing to Parker. Upon this state of facts, it is contended : 1. That White is not liable for any of this property, as security for Parker, because the property did not belong to Rider. Parker had no right to its possession, Webb being the owner, as surviving partner. Gow on Partnership, 356; Story on Partnership, 459, note 1; 492; 1 Williams on Executors, top page, 449—50; ibid, 600, 602; 7 B. Monroe, 22. 2. White is not bound, as the security on Parker’s bond, for any thing more than the faithful administration of the estate of Rider; he is not bound for property belonging to Webb and Rider, which Parker wrongfully converted. Burge on Securityships, 50-51; 5 Halstead’s N. J. R., 35; 4 Johns. Ch., 626. Parker was appointed administrator, with the will annexed, on the 24th September, 1838; the bond sued on was executed on the 5th September, 1838; the will was proven on the 10th September, 1838; Parker died tile 4th May, 1839 ; this suit was commenced 5th February, 1847. It is not alleged in the bill, nor does the evidence show the fact, that any of the claims now presented were ever adjudicated upon by the Court of Probate, although upwards of eight years expired between the date of the letters of administration to Parker and the commencement of this suit. It is insisted, that after two years from 24th September, 1838, the claims not exhibited before the Probate Court, as required by law, are barred. Revised Statutes, 561, sec. 115; Thorn vs. Watson’s Adm’rs, 5 Gilman, 28.
    The counsel for appellant contends that this suit is upon the bond, and that the right of action is not barred by the statute of wills. If this were true, a party, to recover a debt barred by the statute of limitations, against an estate, would only have to change the form of proceeding, and the general limitation law, as well as the laws above cited, would become nugatory. If Parker was now living, he could successfully plead the statute of limitations against all the claims now presented, except those evidenced by notes or bonds, because the right of action accrued upon all of them more than five years before the commencement of this suit. If the relators have no cause of action against the estate, the People can have none upon the bond. It is stated in the bill, that a portion of the claims brought before this Court were presented before the Court of Probate, but there is no allegation of notice to Parker, or his representative, of the time of presenting them, nor of any action of the Court, further than filing the accounts. It is insisted, that the mere filing of these accounts with the Court of Probate does not prevent the running of the statute, limiting the right of action to five years. Upon Parker’s death, in May, 1839, Martin Eikelburner was appointed his administrator by the Court of Probate of Scott county ; he was, also, by the same Court, appointed administrator de bonis non of Rider, and took possession of his estate. Anterior to 15th January, 1840, Martin Eikelburner died, and defendant John White was appointed administrator de bonis non of Parker, but did not succeed to the administration of Rider’s estate. It is contended, that Eikelburner’s estate and securities are responsible for whatever passed into the hands of Eikelburner. Under the 70th section of the act concerning wills, it was his duty to make a final settlement of the estate of Rider.
   Opinion by Treat, C. J.:

First. The cause of action sought to be enforced by this bill was never exhibited against the estate of Parker. There was a final settlement of that estate more than one year before the commencement of this suit. The creditors and devisees of Rider have, therefore, lost all remedy against the estate. R. S., ch. 109, sec. 102. It is insisted that, as the creditors are barred by the lapse of time from assigning a breach of the bond as against the estate of the principal, the sureties to the bond are thereby discharged. However plausible this position may at first seem, it cannot be sustained. As a general rule, whatever discharges the principal operates to discharge the surety. But the rule is subject to this exception: where the discharge is caused by operation of law, and not by the voluntary act of the creditor. A familiar instance is the case of a discharge in bankruptcy. It is no part of a contract, that the creditor shall make use of active diligence to enforce the obligation of the principal. There must be some affirmative act on the part of the creditor, which will discharge the surety—some act that changes the character of the contract, or is calculated to injure the surety. The rights of the creditor against the surety are not impaired by mere delay, except where the surety has the right to require the creditor to prosecute the principal, and actually insists on the right by giving him notice to prosecute. Theobald, in his treatise on Principal and Surety, at page 88, thus correctly states the law on this subject: Forbearance, or mere passiveness, for any length of time, on the part of the creditor towards the debtor, will not discharge the surety; because, until called upon by the surety, the creditor is under no obligation to sue the debtor.” The following cases are in principle precisely like the one before us : Sibley vs. McAllaster, 8 New Hampshire, 389; Johnson vs. Bank, 4 Smedes and Marshall, 165; Cohea vs. Commissioners, 7 ibid, 437; McBroom vs. Governor, 6 Porter, 32; Hooks vs. Bank, 8 Alabama, 580. In each of them, the creditor had lost all remedy against the estate of the principal debtor, by a failure to present his claim against the estate within the time required by law, yet it was held that the sureties were not thereby discharged.

Second. The attempt on the part of Eikelburner to administer on the estate of Rider in Scott county, was not authorized by law. The Probate Court of that county had no jurisdiction over the estate. The will, which was the foundation of the administration, was properly admitted to probate in Morgan county ; and, on the death of Parker, an administrator de bonis non of Rider should there have been appointed. The Probate Court of Morgan county had acquired full jurisdiction of the estate; and the right to retain that jurisdiction, until the estate should be fully administered, was not affected by the death of Parker. The 70th section, 109th chapter, R. S., applies only to cases where the same Court has jurisdiction of both estates. The acts of Eikelburner, in reference to the estate of Rider, are not binding on the creditors or devisees of the estate.

Third. Those of the creditors who labored under none of the disabilities named in the saving clause of the 115th section, 109th chapter, R. S., and who failed to exhibit their claims against the estate of Rider within two years after the grant of letters of administration to Parker, are precluded by the express provisions of that section from all participation in the estate inventoried or accounted for during that period. The object of these provisions is to facilitate the settlement of estates, so that creditors and distributees may ascertain how much they are entitled to receive from the estate, and may not be unreasonably delayed in obtaining it. Creditors are required to make known their demands within two years after the grant of administration. Those free from disability, who neglect to comply with this requisition of the statute, must rely for the satisfaction of their debts on subsequently discovered estate. Thorn vs. Watson, 5 Gilman, 26. The time within which claims must be presented against an estate, is to be computed from the date of the letters of administration, and not from the date of the notice to creditors to exhibit them. The omission of the administrator to give the notice does not relieve the creditors from the necessity of presenting their demands. The statute operates whether publication is made or not. Thrash vs. Sumwalt, 5 Alabama, 13; Cawthorne vs. Weisinger, 6 ibid, 714. The fact that there was no administrator for a part of the two years, did not prevent the creditors from exhibiting their claims against the estate of Rider, and thereby avoiding the operation of the statute. It is a sufficient exhibition of a claim against an estate to file the claim, or a copy thereof, with the Probate Court. R. S., ch. 109, sec. 116. The creditors had the legal right to administer on the estate of Rider, and failing to exercise the right, they ought not to. complain that there was no administrator. The limitation of two years commenced running on the grant of administration to Parker, and continued to run after his death. It is a well settled principle of law, that when a statute of limitations begins to run, it will continue to run until it operates as a complete bar, unless there is some saving or qualification in the statute itself. Rhodes vs. Smethurst, 4 Meeson and Welsby, 42; Cotterell vs. Dutton, 4 Taunton, 826; Peck vs. Randall, 1 Johnson, 165; Sacia vs. DeGraff, 1 Cowen, 356 ; Rogers vs. Hillhouse, 3 Connecticut, 398; Langford vs. Gentry, 4 Bibb, 468; Granger vs. Granger, 6 Ohio, 17. There is no exception in the statute in question which arrests or suspends its operation after it has once commenced to run.

Fourth. The case shows that the property inventoried and sold by the administrator of Rider, or nearly all of it, was the partnership property of Webb and Rider. Webb, as the surviving partner, had the legal right to retain the partnership effects, and settle up the affairs of the partnership. Partnership effects are first to be applied to the payment of the joint debts; and, when they are discharged, the surplus belongs equally to the surviving partner and the personal representative of the deceased partner. The latter has, however, the right, and it is his duty, to insist on a prompt settlement of the partnership by the former, and a division of the surplus. In case the surviving partner is guilty of laches or bad faith in closing up the concerns of the partnership, it is the duty of the administrator to file a bill in equity to enjoin him from disposing of the property, and receiving the outstanding debts, and have the effects- of the partnership placed in the hands of a receiver for final adjustment and distribution. It is insisted on the part of the creditors that Webb waived his right to retain the joint property, and settle up the affairs of the partnership, and assented to the sale of the property by the administrator. If such was the case, the administrator became responsible for the proceeds of the sale; and his sureties are liable to the creditors and devisees, if he did not faithfully account for the same. But it is contended on behalf of the sureties, that the property was taken and sold by the administrator against the consent of Webb; and that subsequent to the sale, an arrangement was made between them, by which Webb was permitted to receive the property, as surviving partner, and apply it in the adjustment of the partnership concerns. The proof is inconclusive and unsatisfactory, and as the cause must be remanded, the parties will be permitted to adduce any additional evidence on this branch of the case. As the case now stands, the proof shows, at least, that the administrator became chargeable with all of the property inventoried, which was not bid off at the sale by Webb and Linkins; and the creditors are entitled to a decree for an account to that extent. The collection of the note of Benjamin, by Eikelburner, was unauthorized ; and unless the proceeds have been applied in the payment of the debts of Rider, the sureties of Parker are responsible therefor. If, upon a further investigation of the case, it shall turn out that Parker disposed of the partnership property with the assent or acquiescence of Webb, then, as administrator, he became chargeable with the proceeds; and if he has not faithfully accounted for them, his sureties must make good the loss sustained by the creditors. Their liability, so far as the partnership creditors are concerned, extends to the whole of the property received by the administrator, and not accounted for; but as to the individual creditors of Rider, only to one half of the property, for after the joint creditors are i>aid, Webb is entitled to a moiety of the surplus. But if, on the other hand, it shall appear that the property, or any part thereof, was surrendered up in good faith by the administrator to the surviving partner, on his claim of right to dispose of it in winding up the affairs of the partnership, then the sureties are not to be hold responsible for what was thus returned to Webb.

Fifth. The heirs of Parker are not necessary parties. The object of the suit is not" to charge the estate of their ancestor. The creditors and devisees of Rider have now no cause of action against his estate. The sole object- of the suit is to charge the sureties on the bond. But the devisees of Rider should be made parties. After the debts are paid, they are entitled to the residuum of the estate. They are therefore directly interested in defeating the claims of the creditors, for in the proportion the amount of the creditors’ demands is diminished, will their claim against the sureties be increased. If an administrator de bonis non of Rider shall be appointed and made a party, it will not be necessary to make the devisees parties. The administrator would represent their interests.

The decree of the Circuit Court must be reversed, and the cause remanded, with leave to the complainants to amend the bill, and to both parties to take additional testimony. The costs of this appeal to be equally divided between the parties.

Decree reversed.


source: Caselaw Access Project

author: Opinion by Mr. Justice Trumbull:

license: Public Domain

text:
    Frederick Pearl and Lawson Holland, appellants, vs. Hiram B. Wellman and Marshall D. Wellman, appellees.

      Appeal from Tazewell.

    Mere passiveness, or delay, in proceeding against a principal, will not discharge a surety.
    In an action upon an appeal bond, the copy of a final order of the Supreme Court, showing that a judgment had been affirmed, on the day alleged in the declaration, between the same parties, and from the same county, is sufficient to justify the inference that the judgment appealed from was affirmed.
    If the judgment read in evidence, and that referred to in the bond, agree in the total amount of the recovery, the omission to state in the bond how much of the judgment was in debt, and how much in damages, does not constitute a material variance.
    In April, 1846, the Wellmans, appellees in this cause, recovered a judgment in the Circuit Court of Tazewell county, against F. Pearl, one of the appellants, from which judgment an appeal was allowed, and a bond entered into by Pearl, with Holland, the other appellant in the present cause, as his surety. At the December term, 1846, of the Supreme Court, the judgment of the Circuit Court was reversed. At the ensuing term of this Court, on motion of the Wellmans, a rehearing was granted, and, thereupon, the judgment of the Court below was affirmed. The present suit was brought against Pearl and Holland, the appellants, on the appeal bond, given on the appealing of the first suit; the non-payment of the judgment after affirmance being assigned as breach. Pearl and Holland pleaded jointly : first, non est factum; and, secondly, that the judgment had not been affirmed. On both of which pleas issues were taken. Besides these, Holland pleaded separately: first, that by the reversal of the cause appealed in this Court, and the adjournment of the Court, without an application for a rehearing, he was released; and, secondly, that by the reversal of the cause, and the adjournment of the Court, without a motion for a rehearing, and consequent loss of indemnity by him, he was discharged.
    The Court below sustained a demurrer to each of these separate pleas by Holland. By consent, the issues of fact were tried by the Court. The plaintiffs, without objection, read the appeal bond as evidence; which bond describes the judgment as being for the sum of S 909 41 debt, and $ 7 501 costs.
    To prove that the judgment in the cause first appealed from had been affirmed by the Supreme Court, the plaintiffs offered in evidence the final order of the Supreme Court, in a case between the same parties, and appealed from the same county; but no further identified, as being of the same judgment recited in the bond. To the introduction of which the defendants objected, unless the plaintiffs would state that they intended to follow it up with further proof of its identity. The plaintiffs refused so to state. The Court overruled objection, and received said final order as evidence ; to which the defendants excepted. At this the plaintiffs closed. The defendants then offered to read in evidence, from the records of Tazewell Circuit Court, a judgment between the same parties, of the same date as that recited in the bond, for the sum of $ 851 54 debt, $ 57 87 damages, together with costs and charges, and thereupon closed. The Court, Davis, Judge, at September term, 1849, found the issues for the plaintiffs, and gave judgment in their favor. Pearl and Holland appeal, assigning for error the admitting in evidence the transcript of the final order of the Supreme Court, as sufficient evidence of the identity of the judgment; the finding of the second issue of fact for the plaintiffs below, and the sustaining the demurrers to the pleas of Holland.
    Lincoln & Herndon, for appellants :
    The reversal of the judgment and the laches of the appellees, in taking no further step at that term, operated to discharge Holland, the surety. People vs. Pearson, 3 Scam., 406; Baker vs. Briggs, 8 Pick., 121, 131; Harris vs. Brooks, 21 Pick., 195, 197; Carpenter vs. King, 9 Met., 511, 517; Warner vs. Helm, 1 Gilm., 220, 232; 2 Am. L. C., 175, 176; 1 Green 1. Ev., sec. 207, 212. More in this case than in the cases cited, because here the laches not only lulled, but actually disabled Holland to protect himself. The judgment affirmed was an indispensable part of the evidence for plaintiffs below, to show it to be the same judgment recited in the bond. Lombard vs. Cheever, 3 Gilm., 469; 1 Greenl. Ev., sec. 82; Hoy vs. Couch, 5 How. Miss., 188, 193; Goddard vs. Long, 5 S. and M., 782, 790; 1 Sup. U. S. Dig., 337, sec. 699; Wilson et al. vs. Conine, 2 J. R., 280. There is a fatal variance between the judgment affirmed and the judgment recited in the bond. Morgan vs. Blackiston, 5 Har. & J., 61; Gildart vs. Howell, 1 How. Miss., 198; Blakey vs. Saunders, 9 Mo., 742; Brooks vs. Jacksonville, 1 Scam., 568; Curry vs. Hinman, 3 Gilm., 90; Wash vs. Foster, 3 Mo., 205.
    Stuart & Edwards, for appellees :
    The demurrer to the third and fourth pleas was properly sustained. The pleas do not present a good defence to this action. The authorities are uniform in sustaining the position, that mere negligence on the part of the creditor will not discharge the surety from his liability. They further establish the doctrine, that in order to discharge the surety, the creditor must do something affirmatively, either by altering the contract with the surety, by some agreement, founded upon a valuable consideration, with the principal debtor; or by some act on his part which will amount to an actual or constructive fraud upon the rights of surety. The mere omission on the part of the creditor to prosecute his suit against the principal debtor; or, when suit is commenced, the omission of some act necessary to its vigorous prosecution, will not discharge a surety. Baker vs. Marshall, 16 Vermont R., 522; Suydam vs. Vance, 2 McLean’s R., 99; Fletcher vs. Gamble, 3 Ala., 335; Newell & Price vs. Hunter et al., 4 Howard’s Miss. R., 685. The cases cited by Mr. Lincoln, viz: Baker vs. Briggs, 8 Pick, 121; Harris vs. Brooks, 21 Pick., 197; 9 Metcalf, 511; 2 American Leading Cases, 175. The cases referred to are not in conflict with the position we assume, that in order to discharge the liability of the surety, the creditor must do some affirmative act, which lulls the security, and would make it a fraud upon his rights to enforce the obligation against him. On the contrary, they sustain that view. See the 2d American Lead. Cases, 175, cited by him, where these cases are reviewed, and our view of them entirely supported. The ground upon which the sureties were released, in the case of Craig & Warner vs. Helm et al., 1 Gilman, 221, was, in principle, the same as that asserted by these cases. These authorities by no means sustain the position that the omission set up in these pleas is sufficient to discharge Holland. No Court has ever so decided, and, we may with some confidence assert, no respectable tribunal will ever so adjudge the law to be. The decision in the case of Pearl vs. Wellmans, 4 Gilman, 395, is conclusive upon the propriety of the rehearing, and of the reasonableness of the time in which the application was made. It cannot with truth be said that the judgment appealed from. was ever reversed, inasmuch as the record of the issues on which that judgment was founded was never before the Supreme Court, until the term at which the judgment was affirmed.
    The second special plea is substantially defective. It is so uncertain that no issue could be made thereon. It does not show the extent of the alleged loss. This plea shows that Holland was indemnified: and a security who is indemnified by his principal is not discharged by time being given to the principal debtor, nor by other acts done by the creditor, increasing the risk of security. Moore vs. Paine, 12 Wend., 123; Chilton vs. Robbins, 4 Ala., 223 ; Bradford vs. Hubbard, 8 Pick., 155. Or, if discharged at all, it would only be to the extent of the loss of his indemnity occasioned by the act of the creditor.
    There was no error in admitting the certified copy of the final order of the Supreme Court. It was pertinent to the issue, and was not secondary in its character as evidence in the case. Of itself it was evidence of the affirmance of the judgment, without the introduction of the antecedent proceedings. Locke vs. Winston, 10 Alabama, 850-1; Jones vs. Randall, Cowper, 17; Packard vs. Hill, 7 Cowen, 434; Rathbone vs. Rathbone, 10 Pick., 1; Garden vs. Col. Insurance Co.; 7 J. R., 514. Nor was there any error in the judgment of the Court upon the facts. Admitting the record introduced by the defendant did show the judgment appealed from, and intended to be described in the bond, still the misrecital of the judgment in the bond is not of such a character as would prevent a recovery on that instrument. The clerk has stated the judgment to be for a sum which is the precise amount of the debt and damages, added together; and this sum he denominates debt, using the term not in its technical sense, but as it is used in ordinary acceptation of the term, denoting the actual amount of the indebtedness. See, on this point, Fulcord vs. Hamberlin, 4 S. and M., 650. This Court will not set aside the verdict of a jury, or the judgment of a Court, merely to allow to the defendant, on another trial, the benefit of a mere technicality, to defeat a judgment in other respects righteous and just.
   Opinion by Mr. Justice Trumbull:

In April, 1846, the appellees recovered a judgment in the Court below against Pearl, from which an appeal was allowed to the Supreme Court, on the ordinary bond in such cases, with Holland as surety. The present suit was brought against Pearl and Holland, on the appeal bond, the non-payment of the judgment after affirmance being the breach assigned.

Pearl and Holland pleaded jointly: first, non est factum; and, secondly, that the judgment had not been affirmed: on both of which, issues were taken. Besides these, Holland pleaded separately : first, that he was a surety upon the bond declared on, that the judgment mentioned therein was reversed at the December term, 1846, of the Supreme Court, and that it was subsequently affirmed atthe December term, 1847, of said Court, upon a rehearing, granted upon a motion which was not made, nor any notice thereof given, until said December term, 1847; secondly, Holland pleaded the same facts set forth in his first plea; and also, in addition, that certain securities had been placed in his hands, to indemnify him against loss in going security upon the bond ; some of which securities had been lost by the negligence and delay of the appellees, in moving for a rehearing:.

The Circuit Court sustained demurrers to each of these separate pleas. By consent, the issues of fact were tried by the Court. The plaintiffs, without objection, read the bond in evidence ; which bond describes the judgment as being for the sum of nine hundred and nine dollars and forty-one cents debt, and seven dollars and fifty and three-fourths cents costs.” To prove that the judgment had been affirmed in the Supreme Court, the plaintiffs below offered in evidence the final order of the Supreme Court, in a case between the same parties, and appealed from the same county, but no further identified as being of the same judgment recited in the bond. To the introduction of which, the defendants objected, unless the plaintiffs would state that they intended to follow it up with further proof of identity. The plaintiffs refused so to state. The Court overruled defendants5 objection, received said final order in evidence, and the defendants excepted. At this the plaintiffs closed. The defendants then offered in evidence, from the records of Tazewell Circuit Court, a judgment between the same parties, of the same date as recited in the bond, for the sum of “ eight hundred and fifty-one dollars and fifty-five cents, the debt in the declaration mentioned; and the further sum of fifty-seven dollars and eighty-six cents damages,55 and also costs and charges, and thereupon closed. The Court found the issues for the plaintiffs, and gave judgment in their favor.

The sustaining the demurrers, the admitting in evidence the said final order, without proof of identity, and the finding the second issue of fact for the plaintiffs, are relied on to reverse the judgment.

The Circuit Court committed no error in sustaining the demurrers to the separate pleas of Holland. The fact that a rehearing was allowed on a motion made at a subsequent term, is conclusive in this case ; at least, that the motion was made in proper time. That question cannot now be inquired into. The appellees took all the steps necessary and appropriate to have their judgment affirmed. It was no part of the condition of the bond which Holland signed, that the judgment of the Supreme Court should be obtained at the earliest practicable moment. His obligation became absolute when the judgment was affirmed, and the circumstance that it was first reversed cannot alter the case. The reversal having been subsequently set aside, and a rehearing granted, the liability of Holland is the same as if no judgment of reversal had ever been entered. The appellees were neither parties nor privies to the transactions which induced Holland to sign the bond, and it would be strange, indeed, if their rights were to be prejudiced because he, without any act of theirs, had lost the securities which he had taken for his indemnity. Had they, by any affirmative act, induced Holland to part with his securities to his prejudice, the case might be different; but the rule is well settled, that mere passiveness or delay in proceeding against the principal will not discharge a surety. Hunt vs. Bridgham, 2 Pick., 581; Fulton vs. Matthews, 16 John., 433; Chitty on Cont., 421. Yet it often happens that the surety loses the means of indemnification by the delay of the creditor in proceeding against the principal. In the case of Baker vs. Marshall, 16 Vt., 523, the creditor dismissed an attachment against the principal, which had been levied upon property sufficient to have paid the debt, and the Court held the surety liable, though the principal subsequently became insolvent.

At the present term of this Court, in the case of The People, use of Markham vs. White, ante, 341, it has been decided, that a surety is not released by the delay of the creditor to enforce his claim, until the principal, by operation of law, is discharged; and in that case, although the principal was deceased, and his estate had been finally settled for more than a year, so that no claim could be presented against it, still his surety was held liable. There is a distinction between doing something which lulls the security to his prejudice, and omitting to do that which would have discharged him, or put it in his power to protect himself. The cases referred to by appellant’s counsel all proceed upon the ground that the creditor had done some act by which the surety had lost or been induced to neglect the means which might have been used for his indemnity. Such was the case in 8 Pick., 122, where the creditor told the surety the debt was paid, and he was clear of it. The Court held that the surety was discharged, if he had lost an opportunity of securing himself in consequence of what the creditor had told him. With cases of this character we have no fault to find. A creditor, who by any act of his has induced the surety to believe that he was discharged, and thereby led him to part with his means of indemnity, ought to be estopped by such act from subsequently proceeding against the surety. But such is not this case. The most that can be said bjr Holland is, that the appellees did not take the earliest possible steps to have the judgment affirmed, and, as has already been shown, mere delay to proceed against a principal will not discharge a surety. If Holland is compelled to pay the judgment upon the bond, he may still resort to the securities placed in his hands as an indemnity, unless he has lost the right to do so by some act of his own.

The next question relates to the admission in evidence of the final order of the Supreme Court, for the purpose of showing that the judgment mentioned in the declaration had been affirmed. It is insisted that this order, though evidence of the affirmance of some judgment, is not sufficient evidence of the affirmance of the particular judgment appealed from. The issue was, whether the judgment of the Tazewell Circuit Court, in the declaration mentioned, had been affirmed, in manner and form as therein alleged; and we think the copy of a final order of the Supreme Court, showing that a judgment had been affirmed on the day alleged, between the same parties, and from the same county, was of itself sufficient to justify the inference that the judgment affirmed was the same one described in the declaration. This precise question has been decided in the case of Lock vs. Winston, 10 Ala., 849, where it was held, that whenever the only matter to be ascertained is the existence of a judgment, the exemplification of the judgment is sufficient in itself without proof of the other proceedings in the cause. It is true, the Court, in their opinion, say nothing about the question of identity, but it was involved in the decision made as completely as it is in this. In an action upon a wager, whether a decree in chancery would be reversed, it was held (Cowper, 17,) that the decree of reversal was proper evidence, without proof of the other proceedings. But, admitting that the final order of the Supreme Court was prima facie evidence of the affirmance of the judgment mentioned in the declaration, it is next insisted, that the defendants overcame this prima facie proof, by introducing in evidence the record of a judgment in the Tazewell Circuit Court, between the same parties, and of the same date as that mentioned in the bond, but varying from it as defendants insist. The only variance between the judgment referred to in the bond, and the one read in evidence by the defendants, consists in this, that the bond refers to a judgment for $909 41 debt, and $7 502 costs, whereas the judgment read in evidence was for the sum of $851 55, the debt in the declaration mentioned, and the further sum of $57 86 damages ; and likewise the costs and charges by them about their suit expended. The total amount of the debt and damages, is the precise sum mentioned in the bond, as the amount of the recovery under the general name of debt. The word debt, as there used, is not to be understood in the technical sense which it has when applied to the form of an action, but in its more general and usual sense, as indieating the total amount which the plaintiffs had recovered against Pearl. As the judgment read in evidence, and that referred to in the bond, agree in the total amount of the recovery, the omission to state in the bond how much of the judgment was in debt and how much in damages, does not constitute a variance between them.

The other point of variance insisted upon is, that the judgment is for costs generally, without specifying the amount, while the bond refers to a judgment for $7 50! costs. In the case of Bryan vs. White, 2 Scam., 47, it was held, that a variance in the amount of costs, as stated in an original, and an alias writ of fieri facias, occasioned by including in the second writ the costs attendant on the first, was not material, and the Court, in commenting upon the manner of entering judgments in this state, say : “ In the first place, the clerk enters the judgment on his record, and costs are awarded without any specification of the amount. He subsequently makes up his costs without any taxation by the Court, and inserts them in the writ of fieri facias.” The practice was admitted to be loose and somewhat irregular, yet the Court gave it their sanction.

It is difficult to conceive why an appeal bond, which refers to the judgment as being for a specific amount of costs, should be considered as materially varying from a judgment for costs generally, when an execution issued upon the same judgment, for a specific amount of costs, would not be obnoxious to the same objection. It would be going too far to require a stricter conformity between the judgment appealed from and that referred to in the appeal bond, than is required between a judgment and the execution issued upon it.

The judgment of the Circuit Court is affirmed.

Judgment affirmed.


author: Opinion by Treat, C. J.:

text:
    John White, appellant, vs. James D. Morrison et ux., and Joseph B. V. Butler, appellees.

      ^Appeal from Pike.

    The statute which authorizes evidence in chancery cases to be given orally, was only designed to change the mode of taking testimony, and not to dispense with the necessity of having the evidence in the record.
    When this statute is acted on, the testimony of the witnesses, or the facts proved by them, ought still to appear in the record.
    The evidence, or the facts proved by it, may be stated in the decree, in a bill of exceptions, in a certificate of the judge, or in a master's report. Itis the duty of the Circuit Court, to see that the evidence is incorporated into the record in some one of these ways. It will not be presumed, that any other proof was made, under this statute, than what thus appears in the record.
    A general reference to exhibits in a decree, must be understood as including only those appearing in the record.
    A complainant cannot allege one case in his bill, and make proof of a different one. His allegations and proofs must correspond.
    Special replications in chancery are now disused. A general replication only puts in issue the truth and sufficiency of the matters stated in the bill and answer. A party may, in an original bill, anticipate a defence, and allege any matter necessary to explain or avoid it; or, omitting to do so, on the coming in of the answer, he may introduce the new matter into the case by an amendment of the bill.
    This was a bill filed in the Pike Circuit Court, in February, 1848, by appellant, against the appellees, to obtain a decree for the foreclosure of certain mortgaged premises. The mortgage was executed to appellant on 26th March, 1842, and acknowledged by Morrison and wife on the same day. After the execution of the mortgage, Morrison conveyed the mortgaged premises to Butler, the other appellee, on the 30th day of June, 1843. Butler signed the following statement, written upon said mortgage :
    “ June 30, 1843.—I do hereby acknowledge that I was well apprised of the execution of this mortgage deed being in the hands of John White of Scott county, previous to the purchase which I made of the same property from James D. Morrison, known and described in this mortgage, also in my deed, known as lots number thirty-six and thirty-seven, in Peters’ addition to the town of Pittsfield; and I admit the same to be put on record, and to the preference of my deed.
    “Joseph B. V. Butler.”
    The mortgage was conditioned for the payment of a note of Morrison to White, dated 26th March, 1842, due in one year, for two hundred and forty-five dollars, with twelve per cent, interest. The mortgage was recorded in Pike county, the day of the date of Butler’s agreement. Morrison and wife having failed to answer, the bill was taken for confessed as to them. Butler filed an answer to the bill, in which he admits the execution of the note and mortgage, and the conveyance of the mortgaged premises to himself, as stated in the bill. Admits that he purchased with knowledge of the mortgage, and that he signed the foregoing agreement, written upon the back of it; but denies any promise to pay the mortgage. The answer further states, that at September term, 1840, of the Pike Circuit Court, one James PI. Johnson recovered a judgment against Morrison for two hundred and fifty-nine dollars and seventy cents ; that on the 8th November, 1845, an execution was issued on said judgment, which was levied on said premises, and sold by the sheriff to Jackson Grimshaw, who assigned the certificate of purchase to Butler, the respondent; that by reason thereof, the sheriff, in pursuance of said sale and assignment, gave Butler a deed for the said premises. The answer further denies a promise to withhold the purchase money from Morrison, or that the purchase, under the execution against Morrison, was upon any condition that the rights of the complainant should not be prejudiced.
    The cause was heard, on the bill, answer of Butler, replication and depositions, before Minshall, Judge, at September term, 1849, who entered a decree dismissing the bill. The complainant prayed this appeal, and assigned for error the dismissal of the bill.
    J. Grimshaw, for appellant:
    1. Butler’s answer not being sworn to, has no greater effect as evidence than the bill. Rev. Stat. 1845, 96, sec. 21. It performs the office of pleading alone, and assists in making up the issues. 4 Scam., 20, Nillis et al., vs. Henderson. Replication being filed, Butler was bound to prove any facts set up by him in his answer, to avoid relief asked for in the bill. Jameson vs. Conway, 5 Gilman, 229. Answer of Butler may be used by complainant, to show what the answer admits; but so far as it sets up new matter, in avoidance of White’s demand, such new matter must be sustained by proof. Hart vs. Ten Eyck, 2 Johns. Ch., 90, and note. Allegations in bill material to relief were admitted by answer. Butler sets up by answer, an assignment to him of a certificate of purchase, on a sale of the mortgaged property on execution, issued on judgment older than mortgage. He files a copy of sheriff’s deed, as exhibit, with answer, but does not say he paid for it. Butler was bound to make strict proof of this new matter in defence, by producing judgment, execution and sheriff’s deed : the original, not a copy. Record shows nothing but this copy. Jameson vs. Conway, 5 Gilman, 231.
    2. Admitting, for sake of argument, that there is some testimony that Butler has acquired a sheriff’s deed under Johnson’s judgment, it should avail him nothing in this cause. On the principle decided in Smith vs. Brown, 5 Gilman, 311, Butler, by his agreement with Morrison, was not bound to pay any thing after 1st November, 1844, unless Morrison, before that time, paid off these liens. After that date he had means in his own hands, and had the right, by the agreement with Morrison, to pay them off himself. Any payment made to Morrison after November 1, 1844, was made in his own wrong. This title inured to benefit of White. Morrison paid the only consideration that was paid. Rev. Stat. 1845, 104, sec. 7; Frisby vs. Ballance, 2 Gilman, 145.
    3. White, the mortgagee, before the sale under Johnson’s judgment, had the legal title. Butler was a purchaser of Morrison’s equity of redemption, prior to White’s mortgage, and with express notice of the mortgage. In order to avail himself of this Johnson title, he must present himself in the attitude of a bona fide purchaser ; he must have purchased in good faith, without notice, for a valuable consideration, which has been actually paid. He must show that he would be hurt by this decree. He must show that in good faith he has acquired some paramount legal title, since June, 1843, when he signed the memorandum on the mortgage, and that he has actually paid for such title. Morrison having repaid to Butler all that Butler paid for this Johnson title, Butler stands precisely where he did when he signed the memorandum.

      Williams & Lawrence, for appellees :
    1. The complainant is not entitled to relief, unless the proof supports the case made in his bill. McKay vs. Bissett, 5 Gilman, 501.
    2. The defendant, Butler, was not disabled, by the fact of his having purchased from White, from also purchasing the property at the sheriff’s sale on Johnson’s judgment. He had the same liberty of purchasing at sheriff’s sale as any other person; and the purchaser at that sale took a title relating back to the time when the lien of Johnson’s judgment attached. Martin vs. Dryden, 1 Gilman, 187.
    3. The cases cited by the counsel for the complainant relate to a purchase made by one person of another, with notice of an outstanding equity in a third person. In such cases, the purchaser of the legal title is made a trustee for the holder of the equity. But these are cases where the equity and the legal title come from the same person. No case can be found where the purchaser of the legal title is made a trustee for the holder of the equity, unless the equity and the legal title are derived from the same person, or unless there is some fraud in the acquisition of the legal title.
   Opinion by Treat, C. J.:

This decree cannot be affirmed. The case shows a clear right in the complainant to a foreclosure of his mortgage, unless the defendant, Butler, made full proof of his defence. He alleges in his answer, that he had acquired the legal title to the mortgaged premises, by virtue of a sale and sheriff’s deed, founded on a judgment recovered against the mortgagor before the execution of the mortgage. The sheriff’s deed, although referred to as an exhibit in the answer, does not appear to have been produced and proved. If introduced and proved as an exhibit, on the hearing, it would have been filed with the papers of the case, and copied into the transcript sent to this Court. Holdridge vs. Bailey, 4 Scammon, 124. But it is contended that the existence of the judgment and the proceedings under it, is admitted by the bill. Such is not the fact. The bill states that the defendant, Butler, pretends that he has purchased the premises, under a judgment older than the mortgage j and then charges that it would be inequitable in him to set up the purchase to defeat the mortgage, inasmuch as he had agreed to pay off the mortgage. This statement does not dispense with proof of the allegations of the answer. It is no't an admission that there was such a judgment, or that such proceedings were had under it. The bill anticipates a particular defence, without conceding it to be true. We are asked, however, to presume that proof of the defence was made orally at the hearing, under the provisions of the act of the 12th of February, 1849, which declares, “that hereafter, on the trial of any suit in chancery, the evidence on the part of either plaintiff or defendant may be given orally, under the same rules and regulations as evidence in cases at common law; provided, however, that depositions taken in pursuance of law may still be read in evidence, as if this act had not been passed.” Acts of 1849, page 133. Previous to the passage of this act, the testimony in contested chancery cases, was taken down in writing in the form of depositions, except where the witnesses were examined orally before a master, and the facts proved by them reported to the Court, and when the proof of exhibits was made viva voce at the hearing. And the depositions, the master’s report, and the exhibits were filed, and made part of the record of the case. McClay vs. Norris, 4 Gilman, 370. We are of the opinion that this act was only designed to change the mode of taking testimony, and not to dispense with the necessity of the testimony appearing in the record. The parties are permitted to produce their witnesses' in open Court, and have them examined orally. The object was to avoid the inconvenience, expense and delay attending the preparation of a case for hearing, where the evidence must be taken by depositions. When this statute is acted on, the testimony of the witnesses, or the facts proved by them, ought still to appear in the record. It may be stated in the decree; in a bill of exceptions 5 in a certificate of the Judge, or in a master’s report. We conceive it to be the duty of the Circuit Court to see that the testimony is incorporated in the record, in some one of these ways. This Court will not presume that any other proof was made than what is thus stated in the record. In this case, the decree recites that the cause was heard on the bill, answer, replication, exhibits and depositions. The record fails to show that any proof was made of the sheriff’s deed. The exhibits referred to in the decree must be understood as including only those appearing in the record. For this defect in the proof of the defendant, the decree must be reversed. Instead of a decree being entered in this Court, the cause will be remanded, that the parties may have an opportunity to present the whole case on the merits. It may not be improper to make some further suggestions respecting the case. It was insisted on the argument that the complainant was entitled to a decree of foreclosure, even if the allegations of the answer were true, inasmuch as he proved that the purchase under the judgment was made with the money of the mortgagor. If such was the fact, Butler cannot assert title under the sheriff’s deed, to the prejudice of the mortgage, because, in equity, it was the purchase of the mortgagor, and inured to the benefit of the mortgagee. But the complainant has not made a case by his bill, that will authorize him to defeat the purchase on this ground. He seeks to avoid the purchase on the ground that Butler was personally liable for the payment of the mortgage. He cannot allege one cause for relief against the purchase, and make out his case by proof of a different one. His proof must correspond with the allegations he has made, and not be inconsistent therewith. He must stand or fall with the case made in his bill. McKay vs. Bissett, 5 Gilman, 499. Special replications in chancery are now disused. A general replication only puts in issue the truth and sufficiency of the matters stated in the bill and answer. If it is necessary for a complainant to put in issue any fact on his part, in avoidance of matters set up by the defendant, he must do it by proper charges in his bill. He may, in the original bill, anticipate the defence that will be made, and allege any matter necessary to explain or avoid it; or, omitting all reference to the defence, he may, on the coming in of the answer, introduce the new matter into the case, by an amendment to the bill. Story’s Eq. Pl., sec. 878; Tarlton vs. Vietes, 1 Gilman, 470.

The decree of the Circuit Court will be reversed, with costs, and the cause remanded, with leave to the complainant to amend his bill.

Decree reversed.