#### Levi Fagan v. Charles W. Jacocks, Admr. of Wm. S. Rhodes.

Where two persons engage in one common risque, as sureties for a third, and one of them subsequently takes an indemnity from the principal debtor, sucli indemnity enures to the benefit of all the sureties.

The case of Moore v. Moore, (4 Hawks, 358,) cited anti approved.

This was an action of assumpsit, brought to recover /rom the defendant, money alleged to have been paid by him as co-surety with the defendant’s intestate, for one Mram Maer. It came on in the form of a case agreed at Spring term 1833, of Bertie Superior Court.

It appeared from the case that the plaintiff with the defendant’s intestate, and one Horace Ely, were co-surcties for Mram Maer, to a guardian bond, on which judgment was rendered against Maer, and his sureties, for §>Sr44 48 with interest. Maer and Ely were both insolvent at the rendition of this judgment. Maer had executed a deed to John S. Bryan in trust, among other things, to secure the said Fagan and Ely, on account of their suretyship for him. From the fund arising from this trust, £>3654 88 was paid towards the judgment against Maer and his sureties, • The plaintiff Fagan, paid besides, $125? 39 of this judgment, and the sum of gl867 02 was paid by the defendant. Ely paid nothing.

It was agreed that the case should be decided on the same principles as if it were in a court of Equity.

His Honor, Judge Norwood, being of opinion that the plaintiff was not entitled to recover, rendered judgment of non-suit, from which, the plaintiff appealed.

Mash for the plaintiff.

Hogg for the defendant.

Gaston, Judge.

This cause conies before us on the • appeal of the Plaintiff from a judgment of nonsuit rendered in the Superior Court, upon a case agreed between the parties, and wc are of opinion that this judg*264ment is correct. It is a part of the case agreed, that thG cause my be decided upon the same principies as ■ . * though it were pending in a court ot Equity. We do ,10† conccive that this agreement of the parties could bestow upon the court, an authority to decide the case by axiy other principles than those which the law prescribes ,. „ , , , to1' its decision. T ho parties may agree upon tacts, but the conclusion to he pronounced ulion those facts, must . 1 *■ be in conformity to the rules which are laid down by a higher authority than that of the parties. In this case however, we apprehend that there is no difference between the law and equity which are applicable to it. The plaintiff is not entitled to recover from the defendant, because lie has not paid more than his rateable proportion of the debt, which in consequence of the insolvency of Maer and of ELy, has been thrown upon the intestate of the defendant. The sum which has been raised by the sale of Maer’s property and apjilied in part discharge of this debt, was not in contemplation of law, or within the meaning of our act of 1807", paid by the plaintiff, it was applied, as the deed of trust from Maer to Bryan, directed it to be applied, and although the motive of Maer in making the deed of trust is declared to be the indemnity of Ely and Vagan, yet this cannot change the character of the fund or the effect of this application of it. And in Equity wc understand the rule to be well settled, that when two or more persons engage in one common risque, as sureties for another, anil one of them subsequently takes an indemnity from the principal debtor, such indemnity shall enure to the benefit of all these sureties. This principle is distinctly asserted in the case of Moore v. Moore, reported in 4 Hawks, 358, and the decision there is expressly based upon the ground that the sureties had not engaged in the same common risque.

The agreement of parties cannot "bestow on a court an authority to decide a case on any other pun cipies than those prescribed by law

Pee, Curiam — Judgment aeeikmed.