Craythorne v. Swineburne

Craythorne v. Swineburne

14 Ves. 160

(subrogation)

FACTS:

Newcastle Bank (NB) gave money to Henry Swineburne (HS), for paying to other bank, on the request of Sir John Swineburne (JS). Money was given on the security of two bonds. One being the joint and several bond of HS as principle and Craythorne (C) as surety; the other bond by JS, saying that this bond will be void as soon as the money is paid by HS and C or either of them. Later HS died insolvent and C (plaintiff) paid the whole sum. C filed a bill for making JS (defendant) pay his part.

CONTENTIONS:

Defendant

JS was not a co-surety with C and he executed the bond only as collateral security in case of default by HS and C.

Plaintiff

1. Whether the sureties are due to one instrument or several is immaterial (as per Deering v. Earl of Winchelsea). JS knew that he was co-surety with others.
2. Doctrine of principal and surety depends on the principles of equity than on contract and hence one surety is entitled for contribution from another.

ISSUE: Whether JS’ engagement was to be co-surety for C or surety for both (HS & C) i.e. to pay only, if both should make default?

LORD ELDON

1. Accepted the principle mentioned in 2^nd contention of the plaintiff.

JS, who had no communication with HS & C proposed to the Bank that he should become a co-surety. The proposition was that HS & C were to be their debtors; and JS, voluntarily adding his security, cannot be bound beyond the extent, to which JS thought proper to bind himself. It was merely an advance as between JS and the Bank, to the other two. C had no right to complain of it, for there is no contact by JS with the other two. Therefore JS is not a co-surety but as between him and C, the latter is just as much a principal as HS; equity does not apply; JH liable only in case the other two do not pay.