#### BOARD OF COMMISSIONERS OF DAVIDSON COUNTY v. T. S. F. DORSETT et al.

(Filed 18 November, 1909.)

1. Principal and Surety — Sureties — Justification — Different Amounts — Contribution.

Contribution between sureties upon a sheriff’s bond, as it relates to their rights between themselves alone, rests upon 'the principle that “equality is equity,” and though they may have justified in different'amounts, upon the same bond for-the same penalty, the burden must be borne by them in equal proportions, in the absence of evidence tending to show that they had otherwise agreed among themselves.

2. Same — Interpretation of Statutes.

In an action wherein judgment had been rendered in a certain sum against an ex-sheriff aiid the sureties on his bond, and continued to determine the liability of the sureties among themselves, who had justified at the foot of the bond in different amounts. Bold, the intendment of Revisal, sec. 310, was to provide a statement under oath to show the solvency of the sureties and afford information to the county commissioners under like sanction that the aggregate amount of the bond equaled the penalty required, and does not affect the doctrine of contribution as it relates to the rights of the sureties to contribution between themselves.

3. Appeal and Error — Sureties—Contribution—Procedure—Final Judgment.

Ordinarily, a court is not permitted to determine the rights to contribution between the isureties on a bond until there has been payment made in excess of the rightful proportion; but as the matter presented in this appeal was the lower court directing execution on a judgment theretofore obtained against the principal and sureties on his bond, the order of the lower court sufficiently partakes of the nature of a final judgment for the Supreme Court to express its opinion.

Appeal from E. B. Jones, /.«April Term, 1909, of Davidson.

Civil action, to determine tlie relative liabilities of sureties, by reason of a judgment on the official bond of their principal, a former sheriff of Davidson County. From the judgment of the court, H. C. Grubb, one of the sureties, having excepted, appealed.

Walser & Walser for appellant.

Other parties not represented.

Hoke, J.

At a former term of the Superior Court, judgment had been duly rendered in favor of plaintiffs on the official bond of defendant T. S. F. Dorsett, a former sheriff, and his sureties, for the penalty of the bond, to-wit, $30,000, to be discharged on *308tbe payment of $10,879.82, tbe amount of tbe default. Tbe cause having been continued for further orders and decrees, and to determine tbe liability of tbe sureties as among themselves for the- amount of such default, on tbe bearing it appeared that tbe bond bad been executed for $30,000 by the defendant sureties, and at tbe time 'same was executed and accepted said sureties bad justified thereon for different amounts, that of appellant Grubbs being for $15,000 and tbe others for smaller sums; tbe form of said justification .being as follows:

> “Tbe undersigned, each for himself, maketb oath that be is a resident of North Carolina and worth over and above bis liabilities and bis property exempted by law, tbe sum set opposite bis name.”

On these facts tbe court adjudged that tbe defendant sureties, as between themselves, were- “responsible in proportion to tbe amount each bad justified for at the bottom of tbe bond, and not liable for equal amounts,” and in this there was error. Tbe doctrine of contribution between persons under a common obligation of this character rests upon tbe principle that “equality is equity”; and while such persons may change or regulate the application of the principle as among themselves by a binding agreement to that effect, in the absence of such an agreement and any and all evidence tending to establish it, the general doctrine must be allowed to prevail and tbe burden must be borne in equal proportion. Smith v. Carr, 128 N. C., 150; Adams Eq., 269-270; Beach on Mod. Eq. Jurisprudence, sec. 822 et seq.

In tbe citation to Adams Eq., just made, it is said: “Tbe right of contribution arises among sureties, where one has been called on to make good tbe principal’s default and has paid more than bis share of tbe entire liability. If all tbe sureties have joined in a single bond, tbe general rule, in tbe absence of any express or implied contract, is that of equality. If their liabilities have been created by distinct bond, tbe contribution is in proportion to their respective penalties.” .

Nor is tbe principal in any way affected by tbe fact that the sureties have justified at the foot of the bond in different amounts. This is an official requirement, which is not contractual in its nature as between tbe parties, but a perusal of tbe statute (Revisal, sec. 310) gives clear indication that its chief purpose is to provide a statement, under oath, that tbe surety is worth tbe specified amount over and above bis debts and liabilities and homestead and personal property exemptions, and to afford information to tbe commissioners, under like sanction, that tbe aggregate of tbe amounts will equal tbe penalty required by tbe law.

*309It may be well to note that we speak tbrongbout of tbe rights of tbe sureties as between themselves. In respect to tbe obligees in tbe bond, tbe State or county or any relator having a legal demand to enforce, tbe general rule is that tbe entire penalty of tbe bond, when required, is collectible against all or any one of tbe sureties.

Ordinarily á court is not permitted -to determine questions of tbe kind presented here until there has been payment made in excess of tbe rightful proportion; but as tbe matter is for tbe purpose of directing execution on a judgment heretofore rendered, the order so far partakes of tbe nature of a final judgment that we have determined to express tbe opinion of tbe Court on tbe facts as presented.

There is error in tbe judgment of tbe court below, and tbe burden will be borne equally among tbe parties liable.

Error.