Opinion
(December Term, 1858.)
To a bill for relief against a surety, the principal is an indispensable party, and if he be dead, his personal representative must be brought in, or some good reason shown for its not being done.
CAUSE removed from the Court of Equity of Mecklenburg co.
Osborne and Wilson, for plaintiff.
Boyden and Lowrie, for defendants.
The plaintiff, in his bill, alleges that, as guardian of certain infants, he took from one Cyrus Williamson a bond, on which there is a balance due of $100, to which one Augustus Alexder [Alexander] was surety; that the said Alexander died in 1849, leaving a will, in which Cyrus Williamson aforesaid, was appointed executor; that said executor paid and delivered to the defendants, as legatees of Alexander, all the remainder of his estate after paying the debts; that Williamson died insolvent, after having thus closed his duties as executor. The plaintiff then became administrator, with the will annexed, of Augustus Alexander, but was able to get nothing wherewith to satisfy the debt due to him, as guardian, and this bill is filed to compel the defendants, as legatees of said Alexander, to contribute out of the funds, paid over to them, their proportion of the debt due as aforesaid.
The will of Augustus Alexander is referred to, in the bill, from which it appears that the several legacies, in respect of which, it is sought to charge the defendants, were left to them in unequal proportions, they being described as grand-children, c., but the proportions are not set forth. Williamson's representative is not made a party, nor is any allusion made to him in the bill.
The defendants demurred.
The cause being set down for argument on the demurrer, was sent to this Court by consent.
The object of the bill is to follow the assets of Augustus Alexander, deceased, in the hands of his legatees, to whom the executor, Cyrus Williamson, delivered them before paying a debt to the plaintiff, on a bond given to him by the said Williamson, as principal, and the testator as his surety. But the statements of the bill are so meagre and indefinite as to render it difficult, if not impracticable to raise the equity, on which the relief is asked; as, for example, the amount of the bond is not given, nor any thing to identify it or put it in issue, except only the obligors or obligee; and the mode of charging the defendants, and the proportions are also omitted, although most of the legacies are not to persons nominatim, but in classes, as the testator's grand-children, or the children of certain of the testator's children.
But, without considering those matters further, and supposing the equity to be well founded, there is a radical defect as to a party, which is fatal to the bill. It does not bring Williamson, the principal debtor, or his representative, before the Court, nor assign any reason for not doing so. To a bill for relief against a surety, the principal is an indispensable party, as the decree must be against him as the person primarily liable, and the surety is entitled to his assistance in impeaching the bond or showing its satisfaction, and also for the purpose of concluding him in any future proceeding, by the surety, for reimbursement. The bill, on that head, merely states that Williamson became insolvent after assenting to the legacies, and is dead. But it does not state when or where he died, nor whether he died testate or intestate, nor that he has no personal representative. The demurrer must, for that cause, be sustained, and the bill dismissed with costs, but without prejudice.
PER CURIAM, Bill dismissed.