Being unable to concur in 1he opinion of the majority of the Court., it will suffice to express my views on the main feature of the controversy, it being the one on which I dissent. It is in relation to the effect of the indorsement on the note in question, under the circumstances attending its execution.
The material facts on this point from the several bills, answers, exhibits and proofs appear to be, that previous to December, 1819, Bradford by original applications and the renewal of his debts, had procured several notes to be discounted in Bank and otherwise, with Simon Turner, one of the defendants, and these complainants as his securities-in the form of indorsers. After much negotiation in this way between Bradford and Ragland, with Turner, Rose and these complainants as sureties or indorsers, and chiefly or entirely for the accommodation of Bradford; a note was executed for about $2500 by Bradford in favor of Turner, having thereon indorsed the names of said Turner as first, these complainants second, and Rose third indorser; After the maturity of This note, the debt was paid except the sum of $1616 84, which, and, the interest thereon, is the debt now in contest, but in a new and modified form.
*262For the security of this residue, and to obtain further'1 time upon it, a blank for ai note was presented to Atwood,-. 0n.e of the complainants, for-indorsement.. It had at the-time the amount 84) marked in figures on the left corner, and Turner’s name written on the other side, in* the usual and proper position-of first indorser. On the-, presentation of the papen,-and: at the request of Bradford, Atwood signed the name of Braban-& Atwood, who were partners in trade, using this- title- below tfee name of Turner as second indorsers:, and: delivered it to Bradford. The latter of his own accord, for aught appearing-to- the> contrary, filled up the face- of the note; making it payable-to the complainants, and delivered it to- Ragland, who after-having it in Bank- for a time, put it ib suit against the com-,, plainants, as first indorsers, his counsel: having so filled the-indorsement as to place the complainants in the-attitude of first indorsers and Turner as second'.
The complainants attempted defence to the suit against, them in the Circuit Court, and being unsuccessful there, removed it into the Supreme Court, where perhaps on the-principle that whether first or second indorsers, they were alike responsible to a subsequent indorser, the judgment was affirmed. During this litigation, suit was also brought against Turner as indorser, a recovery had, and the judgr ment satisfied by himself before the affirmance of the judgment against the complainants. Ragland, by attorney,, after obtaining satisfaction out of Turner, sued out execution on the judgment against the complainants, and indorsed thereon that it was for Turner’s benefit, on the ground that he was second, and complainants first indorsers.
With a view to relief in Chancery against the judgment and execution thus obtained, and pressed against the complainants, they filed several bills in the nature of original, supplemental and amended bills, and a bill of review, embracing in their claims to relief, various other matters which are unimportant to the consideration of the question of liability between the indorsers themselves. They however obtained an injunction of the judgment against them, by means of which, and this writ of error, the collection of the money from them remains suspended. Re - specting the regularity of the complainants multiform proceedings in Chancery, it is only necessary to remark, that I cannot regard the original bill filed by Brahan alone, and the decree thereon, as a bar to relief subsequently sought by himself and partner; not only the parties, but the *263¡grounds of relief are different, and what is more material, rise main grievance, the indorsement on'the execution, assigning the interest to Turner, and the ¡pressure of it lias subsequently arisen. Turner, who seeks indemnity'and remuneration as second indorser,'by'means of the assigned ■execution, does not appear at any time to bave denied, but that the note in question., and several prior notes for similar objects, and having the «ames of these complainants as iindorsers, contained also indorsements in his name. Nor does he appear in any form or manner to have denied the genuineness of his signatures to this or the preceding notes, until six or seven years after tlieir execution. ■ He remained profoundly silent for nearly the same lapse of time, after it was mutually known to him and the complainants, that the notes bore his signature, and that the latter were deeply interested in its genuineness and his responsibility; his silence was cautiously maintained until after Bradford had fled, the country. Moreover, at an early period after the execution of the note, it having been drawn payable only twenty days after its date, when sued as indorser, he simply pleaded non-assumpsit, and suffered judgment to be rendered against him, without presuming to deny his indorsement. It is true the record evidence of this recovery is-not in the transcript, but it was, as appears from the written opinion of the Circuit Court, offered as evidence there, and rejected as being matter inter alios acia. The complainants’ bill however charges the recovery to have been suffered in the manner stated, and Turner’s answer admits it in general terms. Therefore if the facts be material, and I think they are,, they must be assumed as true, or a certiorari should issue to bring up the record as a part of the evidence. There is not the slightest evidence or even averment, that the complainants ever consented to become first -indorsers to this note, or ever admitted themselves to be such. On the contrary, it manifestly appears that -Atwood, who signed the name of the firm, believed at the time, that be was binding them as second indorsers only; and that this was a reasonable and natural conclusion, from seeing the name of Turner previously indorsed, and from the prior transactions of a similar nature, between the same parties, and to which Turner had made no objection.
It has not escaped me, that Turner, by his answer to the complainants’ bill, denies generally that he knew any thing, of the previous notes mentioned as haying borne his sig*264nature'as indorser, or that he ever indorsed them, or the in contest, or that he authorized any one to indorse them for him, or that they were made with his knowledge or consent; or that he afterwards recognised them as valid indorsements. But it must be observed' that this answer was filed in October, 1827, and is ihe first intimation we have of any denial from him of the genuineness of his signatures, when the note in controversy fell due in December, 1819, and the suit thereon against him was instituted shortly thereafter. In aid of Turner’s answer, it is admitted that he had furnished sufficient other proof, that the indorsement on the note is not in his hand writing.
It is equally true, asan abstract proposition, that neither the appearance of a forged indorsement on the note, or any delusive expectations formed from the belief of its genuineness by another, at the time of giving his indorsement, can create any liability on the person whose name is thus indorsed, or affect t,he rights of a subsequent in-dorsee for a valuable consideration, and without notice of the fraud. Let it also be admitted that the judgment or verdict obtained by Ragland against Turner, is inadmissible as evidence in a suit between the latter and these complainants. Yet it by no means follows that any waiver by Turner of his defence against the indorsement, or any recognition either expressed or implied of his responsibility, whether in the defence of a Suit against him or otherwise, does not bind him. Nor dan I admit that the record shewing the nature of the suit against him and his plea, is not admissible evidence to shew his admission or recognition of his indorsement. Suppose instead of the plea of non-assumpsit, he had confessed judgment according to the note and indorsement, it would have been no less matter inter alios acta, yet doubtles the complainants would have been entitled to shew such admission of his liability as indorser, and that by the record. It fully appears from the complainants’ bill and Turner’s answer, and as it is understood by the record of the recovery against him by Ragland, thatTurnerin thatsuit declined availing himself of the only legal defence that could have been made, on the ground of the alleged forgery of his name, as either second or first indorser, and that then he had all Ike evidence of the fact, that he has had at any time since. If the indorsement was a forgery, and lie had plenary evidence of the fact, his defence would have been no less available against Ragland than these complainants. And *265as the responsibility of the latter, depended ultimately on the validity of Turner’s indorsement, together with solvency of Bradford, if the indorsement was spurious, it was important that they should have had the earliest notice of it, that they might have sought redress against Bradford. Who can say that with such notice, they would not have secured themselves? How is Turner’s mysterious silence, relative to the alleged forgery to be accounted for? Did he fear that a denial of his indorsement at the proper time, or at any time during the seven years, would elicit proof that he had lent the use of his name to his friend, and that it had been so used to his prejudice? Was he unwilling to deny his indorsement, lest it should subject some one to the peril of forgery? Or did he seek to favor the complainants decision, and promise himself the gratification of suffering a recovery against himself, that he might prosecute recourse against the complainants who he knew, or had the best reasons to believe were only accommodation indorsers? In any view of the subject, it was an extraordinary and highly criminal silence. I conceive the circumstances to amount to a full recognition and adoption of his indorsement, sufficient to estop him in relation to all persons, from a subsequent denial of the indorsement.
Then I must regard Turner as an indorser; and admitting that in equity, a subsequent indorsee for a valuable consideration, who has made satisfaction to his indorser, may have the benefit of cession of a judgment, obtained by the latter against a prior indorser; admitting also that the same may be done in the case of accommodation in-dorsers, where there is no agreement, express or implied to the contrary; yeti view this case as one essentially different from either. That these were accommodation in-dorsers is sufficiently evident. All the circumstances constituting Turner’s admission, recognition or adoption of his indorsement, apply equally to the peculiarities of the case; to the note with his indorsement in the position of first indorser, and doubtless with a knowledge that the in-dorsement in his name had been first written. But Turner relies, among other things, on thé fact that Bradford filled up the note, which had remained blank, till after the indorsement had been made, with the names of the complainants, instead of himself, as payee; whereby it became necessary, to secure the benefit of both indorsements, that they should be filled up as though the first had been made *266indorser to be the from them to him, and that Ragland’s attorney acted ác-Ocordingly. Prom these circumstances it cannot be inferred that the complainants ever consented to incur a sepa-i-ate liability as between the indorsers, or to be made first The exact reverse of these facts is fully shewn situation of the parties. The light most favorable to Turner, in which I think the subject can be viewed, is to regard him and the complainants as having strongly implied their consent to stand as co-sureties for Bradford, and that as between them the principle of contribution applies. I admit the true doctrine to be as held in 2 Littela and 4 Randolph,b that in ordinary cases of indorsers, even for accommodation, where nothing is expressed or implied to the contrary, there is no right of contribution. That in signing as indorsers, they are presumed to know the law governing commercial transactions, and to have embarked their respective liabilities, subject-only to the common law responsibility in relation to in-dorsers, and which is so far different from that of co-sureties, that the former are held “to have only bound themselves severally in succession, so that each may be a supplemental surety in respect to another.” In support of this doctrine, the Supreme Court of Virginia and ISIew York, and most of the American tribunals which have adopted it, refer for authority to the case of Craythorne v. Swinburne.c All the authorities however concur in the admission, that if from the particular circumstances of the transaction, an agreement among the indorsers can be inferred, that each should bear a. part of the loss if any, as joint sureties, then they are to be regarded as such, and contribution must be allowed, at least in equity. The case referred to of Craythorne v. Swinburne, which has been often treated as a leading one, strongly inculcates this doctrine, and maintains that the intrinsic equity of the case, as between the indorsers should ever be regarded. The facts of that case could not involve much difficulty, yet the Chancellor went at length into the doctrine of liability between co-sureties, and of contribution, and I think admitted the principle for which I contend, and which would award contribution in a case like the present.
He admitted the position that “equality is equity in respect to sureties.” In the case of Campbell v. Mesier & Demstan,d it is ruled that the doctrine of contribution is not so much founded on contract as on the principles of equity and justice. That where the interest is common, *267the burden also should bo common, and that this principle, that equality of right requires equality of burden, has a more extensive and effectual operation in a court of equity than in a court of law.
Hence I am of opinion, the decree should award con-tribulion between Turner and the complainants.
Decree affirmed.
Judge Taylor, not sifting.Page 174.
Page 562.
14 Vesey 160.
4 John. Ch. Rep. 334.