Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Austin term, 1884, and the Tyler term, 1884. Volume 62. Page: 144
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144 GLAsscoCK v. HAMILTON. [Austin Term,
Statement of the case.
ceeding to which neither the ancestor nor the heir was a party. But their
liability, in a proper case, to co-sureties who had paid more than their proportional
share of the debt would exist independent of the judgment.
12. CONTRIBUTION -SURETY.-- A compromise judgment was rendered in a
United States court in a suit on an official bond, by which it was stipulated
that some of the sureties should be discharged from liability on a judgment
against their principal on payment by them of $10,000, the judgment
against the principal being for over $34,000. It was also stipulated in the
judgment that the principal and a co-surety, who was not a party to the
proceeding, should be excluded from the benefits of the compromise. The
compromise sum of $10,000 was paid by those of the co-sureties embraced
in the compromise. In a suit brought by them against the co-surety for
contribution, who was not a party, and who, by the terms of the judgment,
was excluded from its benefits, held, that such co-surety was not liable,
either in law or equity.
13. SAME.- In a suit between co-sureties for contribution, unless the plaintiff
can show that he has paid a greater portion of the debt than the defendant
is liable to pay, he cannot recover.
14. PARTIES.- The technical rule of the common law, that, upon a contract
which is joint and several, the plaintiff must sue all or but one, and cannot
sue two or more without suing all, has never been recognized in practice
in Texas.
APPEAL from Travis. Tried below before the IIon. E. B. Turner.
This was a suit brought by Morgan C. Hamilton, in June, 1875,
against appellants as the heirs of Geo. W. Glasscock, Sr., deceased,
for contribution.
Appellee in his petition alleged that R. N. Lane was appointed
collector of internal revenue for the third district of Texas, on July
24, 1866, and appellees, James H. Raymond, James P. McKinney,
James M. Swisher and Geo. W. Glasscock, Sr., signed as sureties on
his official bond. That subsequent to the execution of this bond,
Geo. W. Glasscock, Sr., died, leaving appellants as his heirs and
devisees; that after the death of Geo. W. Glasscock, Sr., on December
27, 1871, the United States instituted suit on this bond of
Lane's in the circuit court of the United States, at Austin, against
Lane as principal, and all the sureties except Geo. W. Glasscock,
Sr., and that in this suit the United States recovered a judgment
against Lane as principal, and the other sureties who were parties,
for $10,000 and costs of suit. Appellee further alleged that he and
James H. Raymond had each paid $3,880.50, and that James P.
McIKinney had paid $2,687 of the judgment, and that Lane, the
principal, and J. M. Swisher, the other surety, were both insolvent;
that he, in making his part of the payment, had paid for defendants,
as heirs of Geo. W. Glasscock, deceased, $1,293.50, which
amount was in excess of the proportion of the judgment for which
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Austin term, 1884, and the Tyler term, 1884. Volume 62., book, 1885; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth28512/m1/166/: accessed April 26, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .