The opinion
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
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tbe 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.
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It 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.