The opinion of the Court was delivered by
Mr. Justice Gary.The facts of this case are fully stated in the decree of his Honor, Judge Watts, from which the defendants, R. M. Allison and Carrie J. Cartwright, appealed to this Court.
1 *5502 *549The exceptions of R. M. Allison are as follows: “I. Error of fact, not finding that R. M. Allison was surety for A. Y. Cartwright & Co. on their original indebtedness to J. E. Moss, and that Moss knew it from the beginning; and, in this connection, error of law, not holding it competent, as against said firm and its creditors, to show that he was, even if J. R. Moss did not know. II. Error of fact, not finding that when the note of W. M. Allison and R. M. Allison was substituted for the original indebtedness, it was with the understanding and agreement of all the parties to the note representing said debt that upon a certain contingency, which actually happened, the debt should continue to stand as a firm debt; and finding that it was an unconditional substitution, and that the substitution back was in anticipation of the pending assignment by the firm, and to secure an. unlawful preference thereunder; and, in this connection, error of law, holding that even if R. M. Allison was surety, he could only look to W. M. Allison individually for reimbursement in case of *550payment. III. Error of fact, not finding that R. M. Allison paid the original indebtedness; and finding that the payment was made by W. M. Allison with his own money; and, in this connection, error of fact, finding that the alteration made by the clerk in his receipt for the money was not contemporaneous with the receipt itself; and errors of law, holding that the checks on which the money was raised, payable as they were to W. M. Allison, furnished the highest evidence for whom it had been borrowed; and not holding that the payment by R. M. Allison entitled him to set up his claim, as allowed by the referee, and overruling the referee’s report- in that regard.” This Court concurs with the Circuit Judge in his finding of fact that the judgment was not paid by R. M. Allison, but by W. M. Allison, with money which belonged to the said W. M. Allison. Even if R. M. Allison was a surety, in the first instance, and there was an agreement by which this relation was to continue, as contended by the appellant, still no claim by reason of said suretyship can be sustained, as the judgment was paid by W. M. Allison, who was liable as one of the principals.
Having reached this conclusion, the other questions raised by the exceptions become merely speculative, and the said exceptions are overruled.
8 Mrs. Cartwright’s exceptions are as follows: “I. Error of fact, not finding that Carrie J. Cartwright was a bona fide creditor of her husband at the time of the sale of his house and lot, for at least as much as the purchase price. II. Errors of fact, finding that when the note sought to be set up was executed, she was not a creditor of the firm; that the execution was in anticipation of the contemplated assignment, in order to give her an unlawful preference; and that the Wylie purchase money was not used by her husband to pay his indebtedness to her, and not finding the contrary of each of said findings. III. Error of fact, not finding that the consideration of the note in issue was the two checks given by A. Y. Cartwright to the *551firm for $132 and $1,182.99, respectively, and the Wylie-Glenn note, and interest on some one or all these items, her own property, acquired from her husband for a bona -fide debt, at a time when neither party had any reason to suppose that the firm was insolvent; and that the ledger item, $379.96, represented the said Glenn note and the said interest; and in this connection, finding that said note amounted to only $323.10, and that said item of $379.96 was entered on the ledger to force a balance. IV. Errors of law, not holding, under the facts proved, as alleged above, that she was entitled to set up her claim as allowed by the referee, and overruling the referee’s report in that regard.” This Court concurs with the Circuit Judge in his finding of fact, that Mrs. Carrie J. Cartwright was not a creditor of A. Y. Cartwright & Co.
Having reached this conclusion, the other exceptions only raise abstract questions, and are overruled.
It is the judgment of this Court, that the judgment of the Circuit Court be affirmed.
Mr. Justice Jones concurs as to the claim of Carrie J. Cartwright, but dissents as to the claim of R. M. Allison, as to which he agrees with the referee.