Miles v. Rankin

22 Ky. 78, 6 T.B. Mon. 78, 1827 Ky. LEXIS 235

• Court: Court of Appeals of Kentucky
• Decided: October 23, 1827
• Status: Published

Opinion

Judge Mills

delivered the opinion of the Court.

The complainants below filed then' bill, alleging that they were securities in a replevin bond for Benjamin Logan, and that they bad discovered that the note on which the judgment at law was obtained, was given for money won at gaming, by the original payee of Logan, and by him assigned to the defendant Charles Miles, and they pray relief agains-t the replevin bond, which was granted by the decree of the court below; and to reverse that decree this writ of error is prosecuted.

Tt is assigned for error, that Logan, the principal, was not made a party to the bill.

We conceive this error is well assigned. A court of equity frequently indulges principals in obtaining relief, and in permitting them to relieve themselves and their sureties, without making the sureties parties; but the converse of this rule, in case of joint demands and joint rights,%and especially in a case where that which goes to relieve the sureties, equally operates to discharge the principal, cannot be allowed. In such case, the principal must be brought in, and we recollect of ne case, where he has been dispensed with.

JWayes, for plaintiffs; Benny, for defendants.

The decree is reversed with costs, and the cause remanded, with directions to dismiss the bill with costs, and without prejudice to a future suit, unless the principal is, by appropriate amendment, brought before the court in a reasonable time, to be fixed for that purpose in the court below.