| Cal. | Jul 1, 1857
delivered the opinion of the Court—Burnett, J., and Terry, J., concurring.
The plaintiff filed his bill in the Court below to foreclose a mortgage. The defendants admit the demand, but ask that a portion of the amount of the money recovered may be detained in the hands of the Court to answer a judgment obtained against them in an action on the case, growing out of the negligence
The Court below entered judgment for the amount of the plaintiff’s demand, and directed the sum of nine hundred dollars to be retained in the hands of the clerk to answer the plaintiff’s portion of the judgment obtained against the defendants in the former suit. This was error, although the present plaintiff might have been ultimately liable to contribute his share of the judgment; that liability could only be fixed by an actual satisfaction, by the defendants, of the amount recovered. They are resisting the judgment; the plaintiff is not a party to it, and is only liable for his proportion, in the event that the defendants are finally charged, and that they establish their claim against him by an action of assumpsit. It may be that he would have a good defence to the action.
For what this Court knows, the defendants may never pay one dollar of the judgment, and the money of the plaintiff may be all that will ever be applied to its satisfaction. Those who seek equity should do equity, and the defendants have no right to ask that the plaintiff shall give security to answer a contingent liability, unless they proffer to secure him likewise, for he may be served with process and made finally liable for the whole amount, in case of the insolvency of the other defendants.
If the plaintiff is about to leave the State, the defendants have their remedy by a writ of ne exeat.
So much of the decree as directs the sum of nine hundred dollars to be retained in the hands of the clerk of the Court to answer the plaintiff’s liability in the suit of Oliver v. Loyd, is set aside and reversed.