The bill sets out that one Benjamin Hicks, in 1821, was, by the county court of Rutherford, appointed guardian to the minor children, five in number, of Richard Blanton, deceased, and executed five several bonds, one for the benefit of each of his wards, as guardian, and each in the penalty of $600, with one Achilles Durham and the defendant as his sureties; that on 16 April, 1823, the said Hicks renewed his said guardian bonds by order of the court, and gave, in their place, one bond (116) in the penalty of £ 3,500, with the conditions prescribed by law. To this bond Benjamin D. Durham, Achilles Durham, and the plaintiff were sureties. The bill then sets forth that, in 1842, a bill was filed in the court of equity of Rutherford County against the sureties to the bond of 1823, in favor of the children of Richard Blanton and those *Page 93 who represented them or claimed their interest in the estate of the said Richard Blanton, and that a final decree was obtained at the December Term, 1845, of the Supreme Court, against the defendants in that suit, for $3,081.04, with interest on $1,666.03 from 1 January, 1846, together with the costs of the suit; which sum, amounting in the whole to $3,233, was paid and discharged by the plaintiff under an execution issued against him and the other sureties. The bill further charges that Benjamin Hicks removed from this State before the institution of the above named suit, and died intestate and insolvent; that before the obtaining of the above decree Achilles Durham, one of the defendants, became hopelessly insolvent and continues so, and that the said Benjamin D. Durham long since removed from this State to parts unknown, and continues, if alive, to reside abroad. The bill then charges that the defendant is a cosurety with the plaintiff in the faithful discharge, by the said Benjamin Hicks, of his duties as guardian, and that he is the only one from whom the plaintiff can receive any contribution; that the plaintiff, after paying off and discharging the decree of the Supreme Court, notified the defendant of the fact, and demanded of him his part or portion of it, which he refused to pay. It then prays an account, etc.
The defendants admits that he executed the five several bonds (117) first set forth in the plaintiff's bill. He alleges that, having become uneasy at his situation, and with a view to become discharged from further liability for Hicks, he applied to him to give other security, which he accordingly did at April Sessions, 1823, of Rutherford County Court; that upon the records of the same court is the following entry: "April Sessions, 1823. The court took a new bond of Benjamin Hicks guardian of the heirs of Richard Blanton, deceased, in the sum of $3,500, with Edmund Jones,. Benjamin D. Durham, and Achilles Durham for sureties. Done at the request of Burwell Blanton, former surety." He further alleges that this proceeding was had by him with a view to being discharged from his liability for Hicks' guardianship, and that, at that time, Hicks was amply able to discharge all his liabilities as such guardian, and that he has since become insolvent; that Benjamin D. Durham has removed to and still resides in the State of Mississippi, and is a man of wealth, and well able to pay his share of the said decree. He further alleges that, at the time the heirs of Burwell Blanton instituted their said suit against the plaintiff, he was protected by the statute limiting the time within which wards shall bring their suits against sureties to guardian bonds, as all or some of them had arrived at the age of 21 years more than three years before. The defendant admits the decree set forth in the plaintiff's bill, and its payment by the plaintiff.
Replication was taken to the answer. *Page 94 The defendant's objection to making contribution is not put on the ground of his not being a party to the bond of 1823, upon which the judgment against the plaintiff was obtained, but upon the three following grounds: First, that he was discharged from all liability on the bonds, to which he was a party, by the judgment of the county court of Rutherford, when they took the bond of 1823; secondly, that, as Benjamin D. Durham was one of the obligers in the bond of 1823, with the plaintiff, and is in good circumstances, and amply able to pay his share, it was the duty of the plaintiff to follow him to the State of Mississippi, where he lived, and sue him there; thirdly, that more than three years had elapsed after the wards of Hicks, or some of them, had arrived at the age of 21 years, before they instituted their suit against the plaintiff, and he was therefore protected by the act of the General Assembly, Rev. St., ch. 65, sec. 7, and that he had no right to file this bill.
We do not think that any of these objections can avail the defendant. As to the first, if such discharge by the judgment of the county court of Rutherford does exist, it must be a matter of record; and, without deciding whether the county court could or could not so discharge the defendant, it is sufficient to say the defendant has a produced no (119) evidence to support the allegation. The defendant was not discharged by taking the bond of 1823, but his liability continued. If it did not relieve him to the extent he expected and wished, yet it certainly did relieve him to the extent of binding the sureties to the new bond to contribute to any loss he might thereafter sustain by reason of his liability; and it has, eventually, thrown upon the plaintiff, one of the sureties to it, the first brunt of the battle. Governor v. Gowan,25 N.C. 342.
As to the second objection. If Benjamin D. Durham had remained in this State and was solvent, it would have been necessary for the plaintiff to have made him a party, that the court, in its final decree, might adjust the loss between all the parties. Butler v. Durham, 38 N.C. 589. But when one of several parties is out of the jurisdiction of the court, and others are within it, the plaintiff, by stating the fact in his bill, is at liberty to proceed against the latter alone. This is the ordinary practice in the court of chancery. Spivey v. Jenkins, 36 N.C. 126. And the act of 1807, Rev. St., ch. 113, sec. 2, expressly authorizes one surety to sue another without making the principal a party, when he is insolvent and out of the State, and the equity of the act applies to this case. It was not necessary, then for the plaintiff to pursue Benjamin Durham *Page 95 into the State of Mississippi. That burden will fall upon the defendant, if he wishes to lesson the liability which by the decree in this case will rest upon him. Nor was it necessary to make the administrator of Hicks a party. Hicks was insolvent and the administrator has left the State.
As to the third objection, If the wards of Hicks, as is alleged, had reached 21 more than the three years before they commenced their suit against the present plaintiff, he might, if he had so chosen, protected himself under the act limiting the time within which actions must be brought against the sureties to guardian bonds. Rev. St., ch. 65, sec. 7. But he did not so choose. A recovery has been had against him upon a just claim, and he now seeks to make the defendant bear (120) an equal share of that just demand. It is right and proper that the law should fix a time beyond which the sureties to a guardian bond shall not be held liable to the claims of the wards; and the law has fixed the period at three years after their arrival at full age. The claim here is not that of the ward, but of a joint surety. There was no obligation on the plaintiff, either in law or in equity, to plead that statute or rely upon the protection it gave him. In Leigh v. Smith, 38 N.C. 468, andWilliams v. Maitland, 36 N.C. 92, the Court decided that an executor may or may not, at his option, plead the statute of limitations; nor can a legatee compel him to do it, though, by his neglect, or refusal, a liability is thrown on the latter from which the plea would have protected him. The plaintiff Jones was not compelled to plead the statute upon which the defendant relies. Johnson v. Taylor, 8 N.C. 271, was correctly decided, but that was an action by the wards.
The guardian bonds to which the defendant was a surety amounted to $3,000, and that on which the plaintiff was surety amounted to $7,000. All the bonds given by a guardian are but securities for the same thing, and the sureties upon each are bound to contribute; but where the several bonds differ in amount, the liability of the sureties is not equal, but in proportion to the penalties of the different bonds. In this case the sum for which the defendant Blanton is liable, when compared to that which the plaintiff ought to pay of the sum decreed against him, is as $3,000 is to $7,000, and so it must be declared. Jones v. Hayes, 38 N.C. 502.
PER CURIAM. Decree accordingly.
Cited: Hughes v. Blount, 81 N.C. 207; Craven v. Freeman, 82 N.C. 364;Bright v. Lennon, 83 N.C. 189; Dudley v. Bland, ib., 224; Pickens v.Miller, ib., 547; Hallyburton v. Carson, 100 N.C. 109. *Page 96
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