Lusby v. Carr

Ritchie, J., delivered the opinion of- the Court. Chief Judge Miller, of the Circuit Court, who sat below in this case, in passing the order appealed from, delivered the following opinion: “This case has been thoroughly and ably argued. I do not, however, deem it necessary to consider and determine many of the questions which counsel have presented. In my judgment, the case must he disposed of by taking a single view of it, founded upon the well settled legal proposition, that ‘ co-sureties, otherwise entitled to contribution, may, by agreement among themselves, so far sever their unity of interest and obligation, as to terminate the right to contribution.’ 1 White & Tudor’s Lead.

Cases in Equity, 169. “It is conceded that Eli Lusby, Benjamin W. Lusby, P. Dorsey Carr, Charles S. Welch, Samuel Garner and John H. Thomas, became sureties upon the official bonds of James Lusby, who was collector of State' and county taxes in Anne Arundel County for the year 1815. This collector was the son of Eli, and the nephew of Benjamin W. Lusby, the complainant, and made default in paying-over to the State and county the taxes collected by him. If, then, Eli and Benjamin had come forward and paid up this indebtedness, and there was nothing else in the case, their right to contribution from their co-sureties could not ¹⁹⁵ be resisted. But this was not done, nor is such the nature and effect of the transactions which subsequently took place. “ The bonds of the defaulting collector were not only put in suit, but at the April Term, 1811, of the Circuit Court for Anne Arundel County, he was indicted under the Act of 1812, ch. 329, for his defalcation.

If he had been tried and convicted of this charge, his punishment would have been confinement in the penitentiary for not less than one year, unless the amount for which he was defaulter was sooner paid. In this state of the case, the lather naturally became anxious that his son should be relieved from the dangerous position in which he was placed, and an arrangement was made by which the money was raised, and the indebtedness to the State and county paid off. The negotiations which resulted in the raising of this money took place in the latter part of May, and the transaction was consummated on the 5th of June, 1811. • “Upon the time character and effect of this arrangement, the case in my judgment turns. Without going into the testimony at length or in detail, the effect of it is briefly this: “Money to the amount of about $5000 was borrowed from certain parties through the agency of Mr. Bannon, •and to secure the payment of the same, Eli and Benjamin W. Lusby executed a mortgage of their real estate.

The mortgage notes were signed by James Lusby, Eli •and Benjamin W. Lusby, and also by Carr, Welch and Thomas, the names of the latter being required by the parties from whom the money was borrowed, as additional security for the loan. At the time this arrangement was entered into, the proof, as I read it, clearly establishes the fact that it was made with the distinct understanding and agreement between these three parties, Carr, Welch and Thomas on the one side, and the two Lusbys — Eli and ¹⁹⁶ Benjamin — on the other, that if the money was thus-raised, or if the three former went upon the notes as securities to the lenders, for the money loaned, the entire real estate of the two Lusbys, (which was then deemed ample for the purpose,) should be placed between them and all harm or loss, and that, thenceforth} their only liability would be