85 Va. 64 | Va. | 1888
delivered the opinion of the court.
The question to which the arguments of counsel on both sides of this case were chiefly directed, and upon the solution of which our decision must depend, is whether a promise by one to indemnify another, who has become co-surety with him in an official bond, at the promisor’s request, falls within that provision of our statute of frauds which requires that “ a promise to answer for a debt, default or misdoings of another” must be in writing, to he enforceable by action. Code Va., 1873, ch. 140, § 1. The question arises in this way: In 1858 one Thomas K. Davis, being elected sheriff of Prince William county, executed, as he was required by law to do, a bond to the Commonwealth of Virginia, in the penalty of $70,000, for the faithful discharge of his duties, with William W. Davis, Samuel Wolverton, and nine others as his sureties. By reason of this suretyship Wolverton was compelled to pay off a judgment, amounting in January, 1882, the time at which it was discharged, to the sum of
It is therefore upon exceptions to this ruling of the circuit court that the case is before us for review; and a more difficult question for judicial decision, if the mere weight of authority be looked at, can scarcely be imagined; for in England, even at this day, and notwithstanding the decision of Vice-Chancellor Malins, in Wildes v. Dudlow, 23 Wkly. Rep. 435, the. authorities cannot be reconciled, and in America the authorities would seem to be about evenly balanced, there being the decision of “ eight States [see 3 South. Law Bev. 444] at one end of the scale to weigh against eight at the other.” And see, also, on this subject, Throop, Verb. Agr. 459 el seq., where all the cases are
Judgment aeeirmed.