burne, 14 Ves. 160. The co-surety is not liable where it was expressly agreed that there should be no contribution (Keith v. Goodwin, 31 Vt. 268; Paul v. Berry, 78 Ill. 158); even where this arrangement was made with the principals, and was not known to one who had before signed, expecting that the other would be co-surety with him (Adams v. Flanagan, 36 Vt. 400; Harrison v. Lane, 5 Leigh [Va.], 414); or where the liability was on successive bonds in legal proceedings. Dunlap v. Foster, 7 Ala. 734; Yoder v. Briggs, 3 Bibb (Ky.), 228; Old v. Chambliss, 3 La. Ann. 205; Smith v. Bing, 3 Ohio, 33; Langford v. Perrin, 5 Leigh (Va.), 552. Where there is a joint liability, the surety may lose his right to contribution by some neglect or misconduct of his own, for the sureties stand in a relation of trust to each other, and are held to diligence and good faith. Thus, if he has security and afterward, without the consent of his co-surety, surrenders it, or abandons it, he will be charged with its value. Taylor v. Morrison, 26 Ala. 728; Kerns v. Chambers, 3 Ired. (N. C.) Eq. 576; Chilton v. Chapman, 13 Mo. 470. So, if he allows the mortgagor to squander the property. Teeter v. Pierce, 11 B. Monr. (Ky.) 399. Of the same nature is an absolute release of the principal from all liability arising out of the contract. He can no longer compel the co-sureties to pay, for by so doing he would be indirectly making the principai liable. Fletcher v. Jackson, 23 Vt. 581. A surety cannot call on a co-surety who has been released with his consent. Bouchaud v. Dias, 3 Den. (N. Y.) 238. A surety who is fully indemnified must look to his indemnity and not to his co-surety. Morrison v. Taylor, 21 Ala. 779; Goodloe v. Clay, 6 B. Monr. (Ky.) 236; Ramsey v. Lewis, 30 Barb. 403. Where a surety, for a consideration, obtains indemnity, his co-surety cannot get the benefit of it except by sharing the costs. White v. Banks, 21 Ala. 705. If the payment by the surety is voluntary after he has ceased to be liable, or where the note is void, he cannot claim contribution. Skillin v. Merrill, 16 Mass. 40; Russell v. Failor, 1 Ohio St. 327. He cannot recover contribution of a co-surety, as to whom the debt was barred at the date of payment. Shelton v. Farmer, 9 Bush (Ky.), 314. The right does not arise till one has overpaid his share. Camp v. Bostwick, 20 Ohio St. 337; S. C., 5 Am. Rep. 669. He cannot recover costs incurred in a defense unless it was reasonable. McKenna v. George, 2 Rich. (S. C.) Eq. 15; Fletcher v. Jacksor, 23 Vt. 581.

After adjustmen between the sureties one may take and keep payment of his share from the principal. Messer v. Swan, 4 N. H. 481; Moore v. Isle, 2 Dev. & B. (N. C.) Eq. 372. One surety may stipulate for separate indemnity. Thompson v. Adams, Freem. (Miss.)

Ch. 225; Com. Bank v. Western Bank, 11 Ohio, 444. Where he has paid one-half of the execution, he cannot order the sheriff to levy the other half on the property of the co-surety. Schooley v. Fletcher, 45 Ind. 86. Where judgment has gone in favor of one surety and against the other, there is no contribution. Ledoux v. Durrive, 10 La. Ann. 7.

§ 5. How obtained. The form of remedy is determined by the statutes in each State, and to some degree by the form of the contract. Under the old practice the most appropriate remedy was by proceedings in equity, which gave relief where the law did not, in cases where one surety was insolvent. Browne v. Lee, 6 B. & C. 697; Peter v. Rich, 1 Ch. Rep. 34; Dodd v. Winn, 27 Mo. 501; Carrington v. Carson, Cam. & N. (N. C.) 216. But an action is maintainable at law where there is only an ascertained sum to be recovered, and no equities or conflicting rights to be adjusted. Sherrod v. Woodard, 4 Dev. (N. C.) L. 363. In many States a summary remedy is given, whereby the surety on motion may have a judgment against his co-sureties. Young v. Clark, 2 Ala. 264. This must be in the court, where is the original suit. Dade v. Mandeville, 1 Cranch (C. C.), 92. If the defendant appears and pleads, it proceeds like any other suit. Rutherford v. Smith, 27 Ala. 417. In some States it is only allowed where the principal is insolvent, and this must appear in the record. Batson v. Lasselle, 1 Black f. (Ind.) 119. In Kentucky the motion and notice may be joint by several sureties, although the recovery must be several. Lampton v. Bruner, 2 Litt. (Ky.) 141.

§ 6. Parties to action. At law, only the party who is liable to contribution is to be made a party. Where there are more than two sureties, they must be sued separately and not jointly. Powell v. Matthis, 4 Ired. (N. C.) L. 83. Where the surety has a right to do so by agreement with the creditor, he may enforce contribution in his name. McCourtney v. Sloan, 15 Mo. 95. In equity all parties whose rights are affected should be joined. The principal debtor must be a party, unless insolvent. Rainey v. Yarborough, 2 Ired. (N. C.) Eq. 249; Johnson v. Vaughn, 65 Ill. 425; Trescot v. Smyth, 1 McCord's (S. C.) Ch. 301; contra: Couch v. Terry, 12 Ala. 225. Co-sureties, who are insolvent, need not be joined. Burroughs v. Lott, 19 Cal. 125; Young v. Lyons, 8 Gill (Md.), 162; Couch v. Terry, 12 Ala. 225. Sureties in other connected proceedings are not parties; thus sureties on the judgment are not parties to a bill against sureties on an injunction bond. Hilton v. Crist, 5 Dana (Ky.), 384. Sureties out of the jurisdiction may be disregarded. Jones v. Blanton, 6 Ired.

(N. C.) Eq. 115; Currier v. Baker, 51 N. H. 613. Contribution.

See Vol. 2, tit.

§ 7. Defenses to action. We have already considered some of the matters which will defeat a claim to contribution. Ante, 222, § 4. Since the right of contribution rests not upon contract, but arises from principles of equity (1 Story on Eq., § 493), any matter in equity will be a defense which neutralizes the equity of the plaintiff. Dennis v. Gillespie, 24 Miss. 581. A promise by the surety suing to hold his co-surety harmless is a defense. Blake v. Cole, 22 Pick. 97. The co-surety is not bound by the judgment unless recovered with notice to him. Briggs v Boyd, 37 Vt. 534. He cannot show either a total, or partial failure of consideration as between the original parties. Cave v. Burns, 6 Ala. 780; Briggs v. Boyd, 37 Vt. 534. It is a defense that the party paying owed the debtor more than he paid. Bezzell v. White, 13 Ala. 422. A release or abandonment of security is a defense pro tanto. Roberts v. Sayre, 6 T. B. Monr. (Ky.) 188; Taylor v. Morrison, 26 Ala. 728; Kerns v. Chambers, 3 Ired. (N. C.) Eq. 576; Chilton v. Chapman, 13 Mo. 470. It is no defense that their liabilities arise on separate instruments (Bell v. Jasper, 2 Ired. [N. C.] Eq. 597; Armitage v. Pulver, 37 N. Y. 494); nor that the surety has been discharged from his principal obligation. Clapp v. Rice, 15 Gray, 557. It would seem that an agreement to give time to one co-surety would discharge the rest. Prescott v. Newell, 39 Vt. 82. A set-off may be pleaded in the action. Long v. Barnett, 3 Ired. (N. C.) Eq. 631. The real relations of the parties may be proved for the pose of establishing a defense. Paulin v. Kaighn, 27 N. J. Law (3 Dutch.), 503; Clapp v. Rice, 13 Gray, 403; Crosby v. Wyatt, 23 Me. 156. It is no defense that the creditor has abandoned his attachment upon the property of a co-surety. Chipman v. Todd, 60 Me. 282. A surety may have delay in a levy on his own property until any security from the principal is realized upon. Wooten v. Buchanan, 49 Miss. 386. An action cannot be delayed until the assets of the principal are distributed in bankruptcy. Gregg v. Wilson, 1 Law & Eq. Rep. (Md.) 211. Sureties are concluded by the same rules as to the application of payments which apply to their principals. Allen v. Culver, 3 Den. (N. Y.) 284; Brewer v. Knapp, 1 Pick. 332; Wooten v. Buchanan, 49 Miss. 386; Woods v. Sherman, 71 Penn. St. 100; Orneville v. Pearson, 61 Me. 552; Com. Bank v. Muirhead, 4 U. C. C. P. 434. Part payment by a surety even from the proceeds of property pledged to him by the principal to indemnify him, takes the case out of the statute of limitations. Holmes v. Durell, 51 Me. 201. Where the surety guarantees the collection of a claim, the creditor must withVOL. V.-29

pur

out notice proceed within a reasonable time. Craig v. Parkis, 40 N. Y. (1 Hand) 181. A release of one co-surety only discharges the other pro rata. Morgan v. Smith, 7 Hun (N. Y.), 244. See 5 id. 220.

ARTICLE VI.

OF THE DISCHARGE OF SURETIES.

Section 1. In general; what is. The contract of the surety is a conditional one. He has a right to ask that the party who asks performance of him shall himself have performed his duties. It is also evident that here, as elsewhere, he is only held to the contract which he has made. If it is altered without his consent, it becomes a new contract to which he is no longer a party. McKay v. McDonald, 5 Ala. 388; Granite Bank v. Ellis, 43 Me. 367; Reed v. Garvin, 12 S. & R. (Penn.) 100; Ludlow v. Simond, 2 Caines' (N. Y.) Cas. 38. He may be discharged by the substitution of a new surety in his place. Reid v. Nunnelly, 24 Ark. 356; McIntyre v. Borst, 26 How. (N. Y.) 411. So, the creditor may discharge him by a parol declaration that he will not look to him. Harris v. Brooks, 21 Pick. 195; Foster v. Walker, 34 Miss. 365; Hope v. Eddington, Hill & D. Sup. (N. Y.) 43. Any fraud or improper conduct of the creditor will discharge the surety. Franklin Bank v. Cooper, 36 Me. 179; Ham v. Greve, 34 Ind. 19; Shively v. U. S., 5 Watts (Penn.), 332; Peacock v. Chapman, 8 La. Ann. 87. If the creditor, by his own act, prevents performance, he releases the surety. Trustees v. Miller, 3 Ohio, 261; Blest v. Brown, 4 DeG. F. & J. 367. Where the surety withdraws an appeal from a judgment against the principal and himself on the creditor's promise that he will look to the principal only, the surety is discharged. Wimberly v. Adams, 51 Ga. 423. Where the bond was for the good conduct of an officer and provided that the surety might release himself on giving notice, provided the accounts are all settled, this limitation does not prevent his absolute release from all subsequent liability. Gass v. Stinson, 2 Sumn. (C. C.) 453. He may be released by a merger of the contract, as where he is surety on a judgment which is a lien on land, and the judgment and land are held by the same person. Wright v. Knepper, 1 Penn. St. 361. If he is surety on a lease for a year, he is not liable for a tenancy continued beyond the year. Brewer v. Knapp, 1 Pick. 332. The question of discharge was held to depend on the laws of the State where the action was brought, not on those of the place of contract. Toomer v. Dickerson, 37 Ga. 428. The question may

depend on the form of the proceedings, but where there is an opportunity to present it, the same defense will discharge a surety at law as in equity. People v. Jansen, 7 Johns. 332; Wayne v. Kirby, 2 Bail. (S. C.) 551. For this purpose, at least in equity, a judgment does not affect the relation. Smith v. Rice, 27 Mo. 505; Trotter v. Strong, 63 Ill. 272. He is discharged when the creditor so changes his relations that he cannot secure himself by a payment and suit. Boschert v. Brown, 72 Penn. St. 372. The fact that he is a surety must be known at the time of the acts relied on as a discharge. Wilson v. Foot, 11 Metc. 285.

If the creditor deprives the surety of any right which he would have had against the original debtor the surety is discharged. Polack v. Everett, L. R., 1 Q. B. D. 669; S. C., 18 Eng. Rep. 104. If the creditor even by mistake tells the surety that the debt is paid and the surety acts upon his statement to his injury, he is released. Carpenter v. King, 9 Metc. (Mass.) 511; Thornburgh v. Madren, 33 Iowa, 380; Merchants' Bank v. Rudolf 5 Neb. 527; Waters v. Creagh, 4 Stew. & P. (Ala.) 410; Driskell v. Mateer 31 Mo. 325; Wilson v. Green, 25 Vt. 450. Where the debtor offers to pay and the creditor refuses to take the money it releases the surety. Sailly v. Elmore, 2 Paige's (N. Y.) Ch. 497; Whitaker v. Kirby, 54 Ga. 277; Sears v. Van Dusen, 25 Mich. 351; Reed v. Boardman, 20 Pick. 441; Joslyn v. Eastman, 46 Vt. 258; contra: Clark v. Sickler, 64 N. Y. 231; S. C., 21 Am. Rep. 606. But it is not so where the creditor induces the debtor to pay on another debt money he had intended to pay on this. Second Bank v. Poucher, 56 N. Y. 348. The creditor's dealing with any secondary security has the same effect as if with the debtor. Schroeppell v. Shaw, 3 Comst. (N. Y.) 446. Where the creditor having a judgment lien on the property, purchased it, and applied the price on another debt, he cannot call on the surety. McMullen v. Hinkle, 39 Miss. 142. If the contract is joint only the estate of a surety deceased is not liable. Getty v. Binsse, 49 N.

Y. (4 Sick.) 385; S. C., 10 Am. Rep. 379.

§ 2. What is not a discharge. Neither omission of an act not specially enjoined by law, nor the commission of an act expressly authorized by law, is a discharge. Lumsden v. Leonard, 55 Ga. 374. The creditor or obligee in the bond is allowed freedom of action in all matters which are either not prejudicial to the surety, or are contemplated or implied in the contract. Where the bond is for the fidelity of an agent, his commissions may be increased. Smith v. Addison, 5 Cranch's C. C. 623; People v. Vilas, 36 N. Y. 459. Where two join in an order for goods, one is not discharged because the other