160

Court of Jlppeals of Virginia.

^1830. one third of their amount at least; and Porterfield executedthem contemplating a liability to pay one half their amountKing at least; therefore, however the facts might be, whether theSmith &c. bonds were delivered as escrows or not, they were liable inPorterfield a court °f equity, to the extent so contemplated by them,

„ when they signed the bonds : in which I think he was in-

Same. . .

tirely mistaken.

The appellants are bound, jointly or separately, for thewhole amounts of the debts injoined, or they are not boundto any amount. A surety is not bound in equity, unless heis bound at law. There must be two parties to a contract:unless the understanding of the appellants as to the extentof the demand against them, according to the chancellor’sview of their undertaking, was the understanding of theother party also, they are not bound by it, in law or equity.Had the allegations in the bill been proved in trials at lawon special pleas of non est factum, the judgments musthave been for the appellants, as to the whole amount of thebonds in question; and equity must follow the law.

The rest of the decree is also imperfect. The issue di-rected by the chancellor, is not as broad as it ought to havebeen : it ought to have been, to inquire whether the bondsin question were the deeds of the appellants, or not; aswould have been the inquiry at law, on special pleas of nonest factum. That I think the proper inquiry to be made,as I do not think the circumstances proved in evidence,though very strong, sufficient to justify a court of equity indecreeing against the positive testimony of one witness insupport of the allegations of the bill, who is unimpeached.

The decrees are, therefore, reversed ; the injunctions re-instated as to the whole amounts of the claims on the bonds ;and the causes remanded, for further proceedings to be hadin both cases according to the principles here declared.