Hughes v. Garrett , 8 Ala. 483 ( 1845 )

GOLDTHWAITE, J.

It seems to us impossible to sustain this bill, upon, any recognized principle of equity. The case made by the bill is, in effect, nothing more than a statement by the compláitíants, that the confidence they had in the integrity of the principal 'in the bond, when it was executed, has ceased to exist, and the only relief prayed, or indeed which can be given, is, that they may be indemnified by some counter security. It is evident if such a course could be sustained, that every dissatisfied surety would go into equity for the indemnity which he might, in the first instance, have-stipulated for. There is no analogy between the principle asserted here, and that which governs bills quia timet. Although these may be brought when the party fears some future probable injury to his rights or interests, [2 Story’s Eq 155,] yet it is believed no case has ever held, that one would lie where the bill of the complainant depends upon a contingency which may never happen. It is said by the text books, though there are few cases in which a man is not entitled to perpetuate the testimony of witnesses, yet, if upon the face of the bill, the plaintiff appears to have no certain right, or interest in the matter, to which he craves- leave to examine, in present or in future, a demurrer will hold. [Mitford, 156; Story’s Eq. Pl. § 261.]

In the present case, it may be there never will be a necessity to produce the slaves, as it is uncertain how the judgment will be in the claim suit; and until that is determined, the surety seems to be entitled to no indemnity from his principal, in the absence of all stipulations between them. One -ground 'upon which equity will pei’mit a bill by a surety to compel his principal to pay the debt, or perform the duty after ‘the maturity of the obligation is, that then the principal is in default, and the surety is not required to await the action of the creditor, because in the mean time ,he may suffer irremedial injury. - Though relief could doubtless be had upon the more general principle stated in the cases. [Lord Ranelagh v. Haynes, 1 Vern. 180; Lee v. Rank, Mosley, 318.]

The case of Antrobus v. Davis, 3 Merrivale, 569, is very similar to that-made by this hill. There the Colonel of a Regiment haying taken a bond of indemnity from his agents, with another as surety, in respect to all charges, &c. to which he may become liable by their default; the agents afterwards became bankrupt, and the' government having given notice to the representatives óf the Colonel, he being dead, of a demand upon his .estate, by virtue of an unliquidated account, a bill by his representatives, against the representatives of the surety,, to pay the balance due to the government, and also to set aside a sufficient sum out of' their testator’s estate to answer future contingent demands, was dismissed, although attempted to be. supported on the principle quia timet., Sir William Grant, Master of the Rolls, significantly asks the question, “ Can a surety say to his principal, bring money into Court, by way of deposit, because it may eventually turn -out that a debt may be found to be due by the principal, for which the surety may become answerable?” [See, also, Campbell v. McComb, 4 John. C. 534.] If the answer is, that he cannot, which we do not doubt, it applies equally to the performance of a duty which is contingent only.

We think the bill was properly dismissed, as it contains no equity. Decree affirmed.